LAW 104 Turkish Constitutional Law / English

Koc University Law School (Spring 2006)

LAW 104: TURKISH CONSTITUTIONAL LAW

Kemal Gözler

1. Hafta: OSMANLI ANAYASAL GELİŞMELERİ

Week 1: OTOMAN CONSTITUTIONAL DEVELOPMENTS

Constitutional Documents

1. The Rescript of Gülhane – Gülhane Hatt-ı Hümayunu – 3 November 1839

2. Rescript of Reform – Islahat Fermanı – 18 February 1856

3. The Ottoman Constitution, 23 December 1876

4. Revised Articles of the 1876 Constitution, August 1909

Türkçe İngilizce Anayasa Hukuku Terimleri Sözlüğü

Turkish – English Constitutional Law Vocabulary

Sened-i İttifak: Charter of Alliance, Deed of Agreement

Tanzimat Fermanı: Rescript of Tanzimat, Edict of Tanzimat

Gülhane Hatt-ı Hümayunu (Hatt-i Şerif-i Gülhane): Noble Rescript of the Rose Garden

Islahat Fermanı: Edict of Reform, Rescript of Reform, Royal Edict of Reform

Kanun-u Esasi: The Ottoman Basic Law, The first Ottoman Constitution of 1876

1909 Anayasa Değişiklikleri: Constitutional amendments of 1909

Birinci Meşrutiyet: Second constitutionalist period

İkinci Meşrutiyet: First constitutionalist period

Meclis-i Umumi: The General Assembly

Heyet-i Ayan: The Chamber of Notables or Senate

Heyet-i Mebusan: The Chamber of Deputies

Heyet-i Vükela: The Council of Ministers

Sadrazam: Grand Vizier

Vekil: Minister

Vükela (Vekiller): Ministers

İrade-i Seniyye: Imperial Decree

Mehakim (Mahkemeler): The Law Courts

Constitutional Movements During the Ottoman Period

Source: http://www.turkishembassy.org/index.php?option=com_content&task=view&id=188&Itemid=165

Constitutional movements during the Ottoman period commenced towards the end of the 18th century. During the period of 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 document 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 (Second Constitutional Period), which started in 1908, laid the foundations of a parliamentary system by adopting the 1876 Constitution with some amendments made thereto.

The First Constitution

Source: http://www.tbmm.gov.tr/english/about_tgna.htm#THE%20FIRST%20CONSTITUTION

The first written constitution in Turkish history was adopted on 23 December 1876. This constitution, which carried the name of Fundamental Law, was not the result of a movement based on the will of the people, but was realized by means of the "Young Ottomans", the name given to the intellectuals who made a rather strong influence upon the sultan.

According to the 1876 Constitution, unconditional, unrestricted sovereignty belongs to the Ottoman Family. The sultan's person was "sacred". The legislative and executive powers definitely belonged to the sultan. The judicial power could be considered to be independent, but the right to give "amnesty" was definitely belonging to the sultan. All the basic rights were recognized for the citizens excluding the freedom to gather, form political parties and organizations. However, as it was possible to limit these rights by legal means and because there was no gauge on this subject, there was no legal guarantee for basic rights and freedoms. Also, the life, goods, honor and immunity of the homes of the citizens was guaranteed "within the law". Still, the sultan, as the result of a police investigation, could exile people abroad with the justification that they harmed the state. Thus, the judicial guarantee was also harmed to the greatest extent.

Despite all the deficiencies in the 1876 Constitution, it can be considered a very significant advance due to the fact that it was the first written legal document of the Ottoman State which did not have a tradition of democracy and because it commenced the "Constitutional" government.

The First Parliament

Source: http://www.tbmm.gov.tr/english/about_tgna.htm#THE%20FIRST%20PARLIAMENT

The first Turkish parliament, under the name of "General Assembly", started activities on 20 March 1877 as a bicameral assembly. After elections in two steps, the "Chamber of Deputies" or as it is sometimes expressed, the "Parliament", was composed of 115 members, 69 who were Moslem and 46 who were non-Moslem. The "Senate" was composed of 26 members who were directly appointed by the Sultan.

On 23 April 1877, a short period after the General Assembly started to work, Russia opened war against the Ottoman State. During the war, because of the criticisms and strong attacks on the government by the representatives of the nation, the Assembly of Deputies was dispersed by the sultan on 28 June 1877. On 13 December 1877, following the results of the elections held, the second assembly of national representatives in Turkish history was convened. However, as a result of an unfavorable development in the Russian war, this new Assembly was once again dispersed by the sultan on 14 February 1878.

Abdülhamit II, the sultan at the time, governed the country from 1878 to 1908 without convening the Assembly. Around the beginning of 1908, due to gradually increasing foreign developments and extremely violent opposition of the intellectuals, he was forced to summon the General Assembly to a meeting on 23 July 1908.

In this way, the period of the Second Constitutional Monarchy was opened. At the same time, when the Constitution was once again put into practice in this period, it was also mentioned in Turkish political life as the "declaration of freedom". The constitution was changed eight times in 1909, 1912, 1914 and 1916. By this means, the structure of the 1876 Constitution experienced significant changes many times.

As a result of the changes, the right of the Sultan to exile citizens abroad, with a claim of harmful activities, was abrogated. Freedom of the press was expanded and a ban on censorship was made. The liberties to hold meetings and to form organizations was recognized for the citizens. From now on they would also be able to establish political parties. Furthermore, the government was held responsible to the Assembly. The provision of the Assembly being dispersed whenever the sultan wanted it became bound by firm restrictions. The institution of interpellation was established. Definite limits were brought to the sultan's legislative authority. The right to directly propose a draft bill of a law was recognized directly for members of the Assembly. It was accepted that the Assembly chooses the Assembly Speaker without the interference of the sultan.

The democratic parliamentary system brought by these constitutional changes made in 1909 did not last for long due to domestic and foreign events. In an environment of a worn out political struggle, and adding as well the bitter days of the Tripoli War in 1911 and the Balkan Wars that started in October 1912, with the changes made in the Constitution in 1914 and 1916, the sultan's power to dissolve the Assembly was increased step by step. Furthermore, the single party dictatorship of the "Committee of Union and Progress" party, that was in the position of the strongest party, formed one of the most important reasons obstructing the course for democratic development.

One year after the agreements made in the fall of 1913 that ended the Balkan Wars, the Ottoman State was in a predicament of participating in the First World War. In the year the war ended, Mehmet VI (Vahdettin) ascended the throne on 3 July 1918, as the last sultan of the Ottoman State. The First World War concluded with defeat. After the Mudros Armistice, which was signed on 30 October 1918, Sultan Mehmet VI dispersed the Parliament on 21 December 1918. In spite of all the reactions of the public, by treading on the distinct provision of the Constitution, the Parliament was only reconvened on 12 January 1920.

2. Hafta: CUMHURİYET DÖNEMİ ANAYASAL GELİŞMELER

Week 2: CONSTITUTIONAL DEVELOPMENTS DURİNG THE REPUBLICAN ERA

I. Texts of the Constitutions of Turkish Rebuplic

1. The Constitution of 1921

The English Translation of the 1921 Constitution of 1921 is not available. But for an unauthorized translation of the selections from the 1921 Constitution (by O. F. Gençkaya): http://www.bilkent.edu.tr/~genckaya/1921C.html

2. The Constitution of 1924

The English Translation of the 1924 Turkish Constitution:

The Turkish Constitution. New York 1949, 19 p.

Edward Mead Earle, "The New Constitution of Turkey", Political Science Quarterly, Vol. 40, No. 1 (Mar., 1925), pp.73-100 (Stable URL: http://links.jstor.org/sici?sici=0032-3195%28192503%2940%3A1%3C73%3ATNCOT%3E2.0.CO%3B2-6 )
or http://www.bilkent.edu.tr/~genckaya/1924constitution.pdf

3. The Constitution of 1961

The English Translation of the 1961 Constitution:

- S. Balkan, A.E. Uysal and K. Karpat (Translated by ), Constitution of the Turkish Republic, Ankara, 1961, 80 pages.

- "Constitution of the Turkish Republic (text)", Middle East Journal, 1962, Vol. 16, p.15-38.

- Amos J. Peaslee, Constitutions of Nations, The Hague, Martinus Nijhoff, 3rd Edition by Dorothy Peaslee Xydis, 1968, vol. III: "Europe", p.1156-1194

- Gisbert H. Flanz and İlhan Arsel, "Turkey", in Constitutions of the World (Edited Blaustein and Flanz), New York, Oceana, 1976.

E-text is not available!

II. The Constitutional System During the War of Independence (and the 1921 Constitution)

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.

Source: http://www.turkishembassy.org/index.php?option=com_content&task=view&id=188&Itemid=165#constitutional

THE TRANSITION TO NATIONAL SOVEREIGNTY
THE ERZURUM CONGRESS
THE SIVAS CONGRESS
THE NATIONAL PACT
FOUNDING OF THE TURKISH GRAND NATIONAL ASSEMBLY
WAR AND PEACE
THE CONSTITUTION OF 1921
PROCLAMATION OF THE REPUBLIC

III. 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.

Source: http://www.turkishembassy.org/index.php?option=com_content&task=view&id=188&Itemid=165#1924

IV. 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.

Source: http://www.turkishembassy.org/index.php?option=com_content&task=view&id=188&Itemid=165#1961

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