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 raison d'être of the Turkish state, namely "to provide the conditions required for the development of the individual’s material and spiritual existence".
History
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.
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).
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).
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).
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 Ten 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 Süryani minorities of Turkey, even though the minorities recognized legally are Greeks, Armenians and Jews per the Treaty of Lausanne, although there have also been similar claims by the Armenian and Greek communities in Turkey even though, according to the same treaty, they have certain privileges not recognized to other ethnic communities. Nevertheless it must be remembered that Article Three, implicitly, and Article Ten, explicitly, ban (in the spirit of Article 66 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 (an exact transliteration of the principle of indivisibility contained in the Article One of the current version of the Constitution of France (ratified in 1958) that also bans such divisions of the French Nation into sub-divisions).
The Council of Europe’s European Commission against Racism and Intolerance (ECRI) third report on Turkey, published in February 2005, 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] However, such an amendment seems improbable considering that the Article Three clearly states that the official language of the Republic of Turkey is Turkish and it is considered that allowing the teaching of another language as the first language in schools would go against the spirit of this article. 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. On the other hand, 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, except where that freedom may clash with the Article 301 of the Turkish penal code, that holds any insult to Turkishness and the Republic and its symbols to be a crime punishable by a bare minimum of six months imprisonment.
The trial in 2005 of a well-known Turkish novelist, Orhan Pamuk, because of his remarks on the Armenian genocide and the Kurdish/Turkish conflict 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 ultra-nationalist lawyers and charges filed by a district prosecutor under the Article 301 of the Turkish Penal Code that criminalizes "insults to Turkishness". Nevertheless it must be noted, however, that he was later relaxed and charges annulled by the competent Turkish court of first instance. On the other hand, 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 military, who see themselves as the guardians of the secular and unitary nature of the Republic along with Atatürk's legacy, too much influence in political affairs via the National Security Council.[5]
Timeline
![[icon]](/wiki/File:Wiki_letter_w_cropped.svg?lang=en){kind=small} | This section needs expansion. You can help by adding to it. (January 2007) |
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.
- Ratification on 1982
References
- [1] The current constitution in English from the Office of the Prime Minister, Directorate General of Press and Information
- ^ http://www.unhchr.ch/tbs/doc.nsf/0/e00415d0170ee8a5c1256b3a0051eb22/$FILE/G0144925.pdf Office of UN High Commissioner of Human Rights Report - See section no. 84
- ^ http://www.unhchr.ch/tbs/doc.nsf/0/e00415d0170ee8a5c1256b3a0051eb22/$FILE/G0144925.pdf Report of State Party - Turkey by the Office of the United Nations High Commissioner of Human Rights, 2001
- ^ http://europa.eu.int/comm/enlargement/report_2005/pdf/package/sec_1426_final_en_progress_report_tr.pdf
- ^ http://news.bbc.co.uk/2/hi/europe/4637886.stm
- ^ http://www.turkishpress.com/news.asp?id=144705
See also
External links
- The current Constitution in English
- [2] The current constitution in Turkish from the National Assembly
- [3] The Turkish Constitution of 1961 in English