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Constitution Of Turkey

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The current Constitution of Turkey, ratified in 1982, establishes the organization of the government of the Republic of Turkey and sets out the principles and rules of the state's conduct along with its responsibilities towards its citizens. The Constitution also establishes the rights and responsibilities of the latter while setting the guidelines for the delegation and exercise of sovereignty that belongs to the Turkish Nation.

Article Five of the Constitution sets out the of the Turkish state, namely "to provide the conditions required for the development of the individual’s material and spiritual existence".

History

Main article: Constitutional History of Turkey
The current Constitution of Turkey was ratified in 1982 by popular referendum during the military junta of 1980-1983.

It is the fourth constitution of the Republic of Turkey: The first Turkish Constitution was the Constitution of 1921, followed by the Constitution of 1924 and the Constitution of 1961. It was last amended in 2004 and in autumn 2007 is again being reviewed as the government intends to propose further changes to parliament.

Overview

Founding principles

The Constitution asserts that Turkey is a secular and democratic republic, deriving its sovereignty from the people. The sovereignty rests with the Turkish Nation, who delegates its exercise to an elected unicameral parliament, the Turkish Grand National Assembly. Moreover, Article 4 declares the immovability the founding principles of the Republic defined in the first three Articles, "laïcité, social equality, equality before law, the Republican form of government, the indivisibility of the Republic and of the Turkish Nation", and bans any proposals for their modification. The preamble also invokes the principles of nationalism, defined as the "material and spiritual well-being of the Republic". Thus, it sets out to found a unitary nation-state based on the principles of secular democracy.

It also establishes a separation of powers between the three main powers of the state. The separation of powers between the legislative and the executive is a loose one, whereas the one between the executive and the legislative with the judiciary is a strict one.

Delegation and exercise of sovereignty

Article Seven provides for the establishment of a unicameral parliament as the sole organ of expression of sovereign people. Article Six of the Constitution affirms that "sovereignty is vested fully and unconditionally in the nation" and that "the Turkish Nation shall exercise its sovereignty through the authorised organs as prescribed by the principles laid down in the Constitution". The same article also rules out the delegation of sovereignty "to any individual, group or class" and affirms that "no person or agency shall exercise any state authority which does not emanate from the Constitution". Article 80 (A80) affirms the principle of national sovereignty: "members of the Turkish Grand National Assembly represent, not merely their own constituencies or constituents, but the Nation as a whole".

Part Three, Chapter One (Articles 75-100) sets the rules for the election and functioning of the Turkish Grand National Assembly as the legislative organ, as well as the conditions of eligibility (A76), parliamentary immunity (A83) and general legislative procudures to be followed. Per Articles 87 and 88, both the government and the parliament can propose laws, however it is only the parliament that has the power to enact laws (A87) and ratify treaties of the Republic with other sovereign states (A90).

Per Article Eight, the executive power is vested in the President of the Republic and the Council of Ministers. Part Three, Chapter One, Section Two (Articles 109-116) lays out the rules for the confirmation and functioning of the government as the executive comprising the Prime Minister and the Council of Ministers (A109).

The President of the Republic is elected by the parliament and has a largely ceremonial role as the Head of State, "representing the Republic of Turkey and the unity of the Turkish Nation" (A104).

See also: Politics of Turkey

Judiciary

Article Nine affirms that the "judicial power shall be exercised by independent courts on behalf of the Turkish Nation". Part Four provides the rules relating to its functioning and guarantees full independence (A137-140). The judiciary obeys the modern separation of powers among its ranks: It is divided into two entities, Administrative Justice and Judicial Justice, with the Danıştay (The Council of State) the highest court for the former (A155) and Yargıtay (High Court of Appeals) the highest court for the latter (154).

Part Four, Section Two allows for a Constitutional Court that statutes on the conformity of laws and governmental decrees to the Constitution, and it can be seized by the President of the Republic, the government, the members of Parliament (A150) or any judge before whom an exception of unconstitutionality has been raised by a defendant or a plaintiff (A152). The Constitutional Court has the right to both a priori and a posteriori review, and it can invalidate whole laws or decrees and ban their application for all future cases (A153).

See also: Legal System in the Republic of Turkey

Administrative organization

Part Three, Chapter Two, Section Four organizes the functioning of the central administration and certain important institutions of the Republic such as its universities (A130-132), local administrations (A127), fundamental public services (A128) and national security (A117-118). Article 123 stipulates that "the organisation and functions of the administration are based on the principles of centralization and local administration".

National security

The Turkish Armed Forces (TAF) is subordinated to civilian rule and is under the command of the Commander-in-Chief, the President of the Republic. The Chief of General Staff of the TAF is responsible to the Prime Minister in the exercise of his functions, and the latter is responsible, along with the rest of the Council of Ministers, before the parliament (A117).

National Security Council is set up as an advisory organ, comprising the Chief of General Staff and the four main Commanders of the TAF and select members of the Council of Ministers, to develop the "national security policy of the state" (A118).

See also: Turkish Armed Forces

Revision

In Article 175, it also sets out the procudure of its own revision and amendment by either referendum or a qualified majority vote of 2/3 in the National Assembly. It does not recognize the right to popular initiatives: Only the members of Parliament can propose modifications to the Constitution.

Individual and Group Rights

Part Two of the constitution is entitled the Fundamental Rights and Duties and is its bill of rights. Article Twelve guarantees "fundamental rights and freedoms", which are defined as including the right to life, security of person and right to property in Articles 17, 19 and 35, respectively. Many of these entrenched rights have their basis in international bills of rights, such as the Universal Declaration of Human Rights, which Turkey was one of the first nations to ratify in April 1949.[1]

Equality of citizens

Besides the provisions establishing Turkey as a secular state, Article 10 goes further with regards to equality of its citizens by prohibiting any discrimination based on their "language, race, color, sex, political opinion, philosophical convictions or religious beliefs" and guaranteeing their equality in the eyes of the law. Borrowing from the French Revolutionary ideals of the nation and the Republic, Article 3 affirms that "The Turkish State, with its territory and nation, is an indivisible entity. Its language is Turkish". Most importantly, as far as citizenship is concerned, ethnic divisions are irrelevant since "everyone bound to the Turkish state through the bond of citizenship is a Turk" (A66).

Freedom of expression

Article 26 establishes freedom of expression and Articles 27 and 28 the freedom of the press, while Articles 33 and 34 affirm the freedom of association and freedom of assembly, respectively.

Group rights

Classes are considered irrelevant in legal terms (A10). The Constitution affirms the right of workers to form labor unions "without obtaining permission" and "to possess the right to become a member of a union and to freely withdraw from membership" (A51). Articles 53 and 54 affirm the right of workers to bargain collectively and to strike, respectively.

Critique

For a full overview and review of the Turkish Constitution with regards to its guarantee of human rights and fulfillment of obligations towards the international human rights law, please see the review Report of State Party - Turkey by the Office of the United Nations High Commissioner of Human Rights, dated September 17, 2001.[2]

Ethnic rights

The Constitution of 1982 has been criticized as limiting individual cultural and political liberties in comparison with the previous constitution of 1961. Critics claim that the constitution denies the fundamental rights of the Kurdish and Assyrian minorities of Turkey. Per the Treaty of Lausanne which established the Turkish Republic, legally, the only minorities are Greeks, Armenians and Jews, which also have certain privileges not recognized to other ethnic communities, per the treaty. Article Three, implicitly, and Article Ten, explicitly, ban (in the spirit of Turkishness based on citizenship rather than ethnicity mentioned above) the division of the Turkish Nation into sub-entities and the referral to ethnic groups in law as being separate from the rest of the Turkish Nation because of the principle of indivisibility of the nation. This principle of indivisibility is contained in the Article One of the Constitution of France (ratified in 1958), as well.

Article Three states that the official language of the Republic of Turkey is Turkish. The Council of Europe’s European Commission against Racism and Intolerance (ECRI) published its third report on Turkey in February 2005. The commission has taken the position that the parliament should revise Article 42 of the Constitution, which prohibits the teaching of any language other than Turkish as a first language in schools. [3] The Turkish constitutional principle of not allowing the teaching of other languages as first languages in schools to its citizens, other than the official one, is similar to the policies of Germany, France and Austria, all members of the European Union. Since 2004, private courses of local languages can be opened and function with neither an a priori nor an a posteriori oversight by the state.

Freedom of expression

The constitution of Turkey is taken to grant Freedom of Expression to citizens. Article 301 of the Turkish penal code states that " A person who publicly Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years" and also that "Expressions of thought intended to criticize shall not constitute a crime".

The trial in 2005 of a well-known Turkish novelist, Orhan Pamuk, because of his remarks: "One million Armenians and 30,000 Kurds were killed in these lands, and nobody but me dares talk about it." was considered by some to be a violation of Article 10 of the Constitution. The complaint against Orhan Pamuk was made by a group of lawyers and charges filed by a district prosecutor under the Article 301 of the Turkish Penal Code. Pamuk was later relaxed and charges annulled by the competent Turkish court of first instance. The same group of lawyers have repeatedly filed complaints against many other less-known authors for the same reasons. The outcome of the cases are still unclear pending the completion of legal proceedings. [4]

Influence of the military

The constitution is also criticised for giving the Turkish Armed Forces, who see themselves as the guardians of the secular and unitary nature of the Republic along with Atatürk's reforms, too much influence in political affairs via the National Security Council.

Timeline

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Since its ratification in 1982, the Constitution of 1982 has overseen many important events and changes in the Republic of Turkey, and it has been modified many times to keep up with global and regional geopolitical conjectures.

Notes and References

1. ^ [1] Office of UN High Commissioner of Human Rights Report - See section no. 84
2. ^ [2] Report of State Party - Turkey by the Office of the United Nations High Commissioner of Human Rights, 2001
3. ^ [3]
4. ^ [4]

See also

External links


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