Constitutional Movements During the Ottoman Period

Constitutional movements during the Ottoman period commenced towards the end of the 18th century. During the period of the 1789-1808, Sultan Selim the Third envisaged the formation of an advisory assembly, called the Meclis-i Meshveret, within the context of the New System (called the Nizam-i Cedid) that he wanted to have set up, which is seen as a major step towards a constitutional government system.

The "Sened-i Ittifak", or Charter of Alliance, is seen as the first important document from the point of view of a constitutional order. Whilst the 1808 charter restricted the Sultan's exercise of power, it also delegated some authorities to a senate body, called the Ayan. The charter is a significant document as it was also recognized by the Sultan.

The Tanzimat Reform era commenced with the issue of the decree entitled "Gulhane Hatt-i Humayun" in 1839. The subjects of the Ottoman Padishah were assured that their basic rights would be respected.

The documents is especially significant for its recognition of equal rights in education and in government administration for those of Christian persuasion, exemplifying egalitarian principles. The 1875 document entitled the Ferman-i Adalet, or the Imperial Edict on Justice, provided for independence of the judicial courts and ensured the safety of judges.

The most important step along the road to the rule of law was made with the introduction of the 1876 Kanun-i Esasiye, or Constitution, which also started the period known as the First Meshrutiyet, or First Constitutional Period. The basic concept in the 1876 constitution is that, although somewhat restrictive in the exercise of powers, it nevertheless, for the first time, recognized a parliamentary system. This constitution has provisions covering basic rights and privileges, the independence of courts and the safety of judges, among other aspects.

After the 1876 Constitution had been in effect for one year, the Second Meshrutiyet period laid the foundations of a parliamentary system by adopting the 1876 Constitution with some amendments made thereto.

The Constitutional System During the War of Independence

When the Turkish Grand National Assembly congregated on April 23, 1920, this in itself marked a unique and important change in the exercise of sovereignty.

During the Ottoman reign, the workings of Parliament were to an extent, the use by delegation of the powers of the ruler in the legislative process. Whereas, in the case of the workings of the Turkish Grand National Assembly, all authority was vested in Parliament itself.

The Constitution of January 20, 1921 is called the "Constitution Law", and when compared with the Ottoman legal system contains a radically new concept. According to this concept, whilst the power to legislate belongs to parliament, the executive powers can only be exercised by an "executive council" to be elected by majority vote from among the members of Parliament.

According to this "Law of Constitution", differences of opinion and disagreements between ministers are to be resolved in Parliament. In addition to this, the changing of ministers is also counted among the powers of Parliament. The name of the government during the course of the war of independence was the "Government of the Grand National Assembly" and the name of the regular army "The Army of the Grand National Assembly". On the other hand, the government itself was vested with the power to dissolve Parliament or to "renew the election of the Assembly".

In this system, which did not have a "Head of State", the members of Independence Tribunals were also elected from among the members of the Assembly.

An important step was taken to establish a Council of Ministers with more freedom of movement when a motion that the form of the state should be "Republic" was enacted on October 29, 1923; the President of the Republic was to be elected from among the members of the Assembly for one term of office. According to law, the President would select the Prime Minister from among the members of the Parliament. In turn the Prime Minister would select the other Ministers from among the members of Parliament and, finally, the President would submit the whole of the Council of Ministers for the approval of Parliament.

The Republican Era Constitutions

The 1924 Constitution

The 1924 Constitution provided for the continuation of the system of parliamentary governments. Powers of both legislation and execution were held by Parliament. Whilst Parliament had the right to monitor and if necessary to bring down the Government, neither the President nor the Government could dissolve Parliament.

Although under the provisions of the 1924 Constitution, executive powers could only be exercised by the President or the Council of Ministers, the 1924 Constitution, contained elements of both the parliamentary system and governmental executive powers. In this manner, whilst Parliament directly exercised legislative powers, a separation of powers did exist in view of the exercise of executive power. Furthermore, the principle of collective responsibility of the Council of Ministers to Parliament and the concept of the President not being vested with political responsibility are embodied in the 1924 Constitution.

The judicial and executive powers are clearly separated. Independent courts exercise judiciary powers on behalf of the nation.

The 1924 Constitution was amended in 1937, the six main principles of the Republican Peoples' Party programme, republicanism, nationalism, populism, statism, secularism, and reformism, also being enshrined in the Constitution itself as basic qualities of the state.

The 1961 Constitution

The 1924 Constitution represented a mixed system somewhere between parliamentary governments and a parliamentary model. The 1961 constitution brought about further developments in the parliamentary system.

The Legislature was a bi-cameral Parliament. One chamber was the National Assembly consisting of 450 deputies elected by universal suffrage. The other was the Republican Senate, composed of 150 Senators elected by universal suffrage, as well as fifteen Senators who were appointed by the President, in additional to which the members of the National Unity Committee and former Presidents of the Republic are lifetime Senators. In the functioning of the legislative process, the National Assembly has final say over the two houses.

In the exercise of executive power, the President symbolically represents the unity and integrity of the State, and the Prime Minister and other Ministers make up the Council of Ministers, who bear political responsibility in the use of this power.

The Prime Minister is appointed by the President from among the members of the Turkish Grand National Assembly. The Ministers are appointed by the Prime Minister and presented to the President for his ratification.

The 1961 Constitution fully separated the judiciary from the executive and the legislature, thereby clearly operating the separation of powers principle. In this system, details regarding the security of judges as well as matters related to full freedom and independence of the courts and the positions of the judges were turned over to the "High Commission for Judges", whose members were elected from among the judges of the Supreme Court.

Furthermore, the concept of the "Constitutional Court" was first introduced with the 1961 Constitution.

The 1982 Constitution

Whilst the 1982 Constitution continued the basic structure of the 1961 Constitution, it nevertheless made significant changes in several areas.

The Republican Senate was abolished in the 1982 Constitution.

According to the Constitution, unconditional and unrestricted sovereignty is vested in the nation. The people exercise their sovereignty directly through elections, and indirectly through the authorized organs within the framework of the principles laid down in the Constitution. The legislative, executive and judiciary are the organs which use sovereignty. The legislative power is vested in the Turkish Grand National Assembly (TGNA) and cannot be delegated. Executive power and functions are exercised and carried out by the President of the Republic and the Council of Ministers, in conformity with the Constitution and the laws. Judicial power is exercised by independent courts.

The principle which brings the separation of powers into existence is the principle of a legal state. This principle provides for the supremacy of law in the existence of the state and the society. The power of the legislative and executive powers, are limited and balanced with the judiciary as the result of the principle of the supremacy of law. Legislative procedures and activities, and procedures of execution are dependent on judicial control. Thus, democracy is obtained and preserved in the state administration. The Constitution is equipped with the rules which guarantee this system. The rules of the Constitution are binding and of a superior quality and are the basic legal regulations which bind the legislative, executive and judicial organs, the government and the other persons and organizations. Furthermore, the hierarchy of the norms is adopted; it prevents the lower-norms from being in violation of the upper-norms. Constitutional Court decisions bind the legislative, executive and judicial organs, the government and all the real and juristic persons, and these decisions constitute the source of legality for the governmental procedures.

Fundamental Rights and Freedoms

In the preamble of the Constitution, it is stated that every Turkish citizen has the right to exercise the fundamental rights and freedoms set forth in the Constitution according to the requirements of equality and social justice, in order to lead a dignified life in the national culture, civilization and legal system as well as the right and authority to develop one's material and spiritual being towards this end. It was not satisfied with this and in the articles of the Constitution, it is emphasized that the Republic of Turkey is a State which respects human rights. The state has been given the function of removing the political, economic and social obstacles which limit the fundamental rights and freedoms of the individual, which are not in accord with the principles of a social legal state and justice, and to attempt to prepare the necessary conditions for developing the physical and spiritual wellbeing of the people. The State has been given the duty and is obliged to provide for the family unity of the Turkish citizens who work in foreign countries, for the education of their children, for their cultural needs and social securities.

In the field of the fundamental rights and freedoms, the Constitution includes rules that are the result of perceptions of both natural law and contemporary law. Emphasizing that everyone has fundamental rights and freedoms which are inviolable, untransferable and unrenounceable, shows that the perception of natural law is dominant in the Constitution. The fundamental rights and freedoms also include the duties and responsibilities of the individual to the society, to his/her family and other individuals. In the context of fundamental rights, the right to live and to preserve and develop the physical and spiritual wellbeing have been recognized. The bodily integrity of the individual is inviolable, excluding medical necessities and situations written in the law. The individual cannot be made subject to scientific medical experiments without his/her consent. No one can be tortured or tormented; no one can be sentenced to a punishment which is not in accord with human dignity. Corvee is forbidden; no one can be forced to work. Everyone has individual freedom and security. The secrecy of private life is basic, and everyone has the right to request that respect is shown for his/her private and family life. Besides these, in the context of fundamental rights and freedoms, the following have been regulated and guaranteed with the Constitution: the inviolability of the home, the freedom of communications, the freedom of travel, the freedom of religion and conscience, the freedom of thought and opinion, the freedom of expression and dissemination of thoughts, the freedom of science and arts, the freedom of the press, the freedom of making a group with an organized structure, the right to hold meetings and demonstration marches and the right of property.

The Constitution of the Republic of Turkey also includes social and economic rights which are the result of the perception of contemporary law. The protection of family and youth, the right and the duty of training and education, the freedom to work and conclude contracts, union rights, fair wage, the right to live in a healthy, balanced environment, the right to housing, the right to social security and the protection of art and artists are within this context. Furthermore, the political rights and obligations, such as the right to vote and be elected, the obligation to pay tax and to serve in the military and the right of petition are also included.

The Constitution makes everyone equal before the law. Discrimination cannot be made among individuals because of language, religion, sect, race, color, sex, political opinion, philosophical belief and similar reasons. No privilege shall be granted to any individual, family, group or class.

Foreigners have the same rights and freedoms, taking into consideration national unity, territorial integrity, sovereignty and the independence of the Republic of Turkey. Rights and freedoms for foreigners can only be limited by law in accordance with international law. However, political rights and the right to enter into public service are only given to Turkish citizens.

Rules related to the limitation of fundamental rights and freedoms in the Constitution are in conformity with universal rules. The fundamental rights and freedoms can be limited with the objective of protecting the unity of the country and the nation, national sovereignty, the Republic, public order and interests, national and general security and general morality, health and for special reasons stated in the Constitution. However, this limitation cannot be in violation of the necessities of a democratic societal structure and cannot be used outside of the objective envisaged. The Constitutional Court has accepted "the limitation of the limits" of "the core" of the rights and freedoms and has decided that rules which harm the core of the rights and freedoms are not in accord with the necessities of a democratic societal structure.

The abuse of fundamental rights and freedoms has also been prohibited. It has been stated in the Constitution that fundamental rights and freedoms cannot be used with the objective of violating the integrity of the country and nation, of endangering the existence of the Turkish State and Republic, of destroying the fundamental rights and freedoms of others, of placing the government of the State under the control of an individual or a group of people, or of establishing the hegemony of one social class over others, or of creating discrimination on the basis of language, race, religion or sect, or of establishing by any other means a system of government based on these concepts and ideas. Furthermore, the fundamental rights and freedoms are protected, as well, against the illegal interventions of the State.

Every Turkish citizen has the right to open a law suit at the judicial courts in case his/her fundamental rights and freedoms are violated; however, they do not have the right to apply directly to the Constitutional Court. Citizens can claim violation of the Constitution in law suits opened at the courts. If the Court finds this claim to be valid, then it can refer the subject to the Constitutional Court.

Turkey accepted the United Nations Universal Charter of Human Rights in 1949, and ratified the European Agreement Concerning the Protection of Human Rights and Fundamental Freedoms in 1954. The right for individual applications from Turkish citizens to the European Commission of Human Rights was recognized in 1987; the compulsory judicial power of the European Court of Human Rights was recognized in 1989. Thus, international control on the subject of human rights was adopted. Some of the regulations in the Charter and Agreement were reflected in the Constitution; and this Charter and Agreement was a source for the justifications for some of the regulations.

The Foundations of the State System

According to the Constitution, the form of the State is a Republic and unconditional, unrestricted sovereignty belongs to the nation. The Republic of Turkey is a democratic, secular social legal state, respecting human rights and committed to the nationalism of Atatürk.

The fact that unconditional, unrestricted sovereignty belongs to the nation, reflects the democratic state model. The democracy adopted by the Constitution is representative democracy. The people elect their representatives with their votes, and thus they indirectly use their sovereignty rights. Beyond this, sovereignty is used by the authorized organs in accordance with the principle of the separation of powers and according to the principles in the Constitution. No one or organ can use the State authority which does not have its source from the Constitution. The considered referendum, which is the direct use of sovereignty, is only for changes in the Constitution. Authorized organs for using sovereignty cannot be outside of the free democracy and the legal system determined by the requirements of this democracy.

The Constitution adopted the "unitary state" model and the principle of a "single people" within the cultural mosaic. The nation is "single," the country is "whole", and the State is "one."

The legal state foreseen in the Constitution is based on the principle of the protection of fundamental rights and freedoms and the separation of powers. The supremacy of law is the foundation. Legislative procedures are subject to the control of the Constitutional Court and executive procedures and activities are subject to the control of the Administrative Court.

According to the principle of secularism, no one can make the basic social, economic, political and legal system of the State depend on religious rules even partially; and cannot abuse religion, religious beliefs and objects which are considered to be sacred by religion in any manner whatsoever, with the objective of obtaining political or personal advantages or influence.

Political parties are indispensable components of democratic life. However, the Constitution guarantees the independence of the State, the inseparable unity of the country and nation, the national sovereignty, advocacy of the freedom of democracy, secularism, human rights and freedoms and the principle of the legal state. It also foresees the closing, by the Constitutional Court, of the political parties which have regulations, programs or activities that are in violation of these principles and components.

The principle of a social state is a contemporary component which completes the traditional principle of the legal state. This principle has assigned the State to protect individuals who are socially weak against the socially strong and to provide social justice and social security.

Amendment of the Constitution

The Constitution has decrees which cannot be amended and cannot even be proposed to be amended. The decrees related to the Turkish State being a Republic, the precepts on which the state system is based, the unitary structure of the state, the design of its flag, the national anthem, and that Turkish is the official language and the capital of Turkey is Ankara are decrees that cannot be amended and cannot even be proposed to be amended.

From the aspect of decrees other than these, the stipulation of a qualified majority is considered for an amendment to the Constitution, and a special method has been adopted. To make an amendment to the Constitution, it is necessary for there to be the written proposal from a minimum of one third of the total number of members of the Turkish Grand National Assembly (TGNA), the Parliamentary General Assembly should discuss the proposal twice and the proposal should be accepted by a majority of three fifths of the total number of members of the Parliament in a secret ballot. The President has the authority to send the laws related to amendments to the Constitution back to the Parliament to be discussed once more, and to present them to a referendum.