Constitution of Turkey
The Constitution of the Republic of Turkey (Turkish: Türkiye Cumhuriyeti Anayasası), also known as the Constitution of 1982, is
Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct
along with its responsibilities in regards to 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 people.
The constitution was ratified on 7 November 1982. It replaced the earlier Constitution of 1961. The constitution was amended
seventeen times, two of them through a referendum: 2007, 2010, one of them partly through referendum: 1987. Overall, 113 of the
177 articles of the Constitution of 1982 were amended.[1] Another referendum concerning a new draft constitution that would
increase the power of the President and abolish the of [2]
fice of the Prime Minister was held on April 16, 2017.
Contents
History
Overview
Part One: Founding principles
Part Two: Individual and Group Rights
Equality of citizens
Freedom of expression
Group rights
Part Three: Fundamental Organs
Legislative Power
Judiciary
Executive
National security
Revision
Critique
Ethnic rights
Freedom of expression
Influence of the military
See also
References
Further reading
External links
History
The first constitution of theOttoman Empire was adopted in 1876 and revised in 1908.
Since its founding, the modern Turkish state has been governed under four documents:
The Constitution of 1921,
The Constitution of 1924,
The Constitution of 1961, and,
The current Constitution of 1982.
The current constitution was ratified by popular referendum during the military junta of 1980-1983. Since its ratification in 1982, the
current constitution 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 conjunctures. The last significant amendments were made in 2010.[3] A minor
amendment to Article 59, on the permissible means for challenging "decisions of sport federations relating to administration and
1.[4]
discipline of sportive activities," was made in March 201
Overview
Part One: Founding principles
The Constitution asserts that Turkey is a secular (2.1) and democratic (2.1) republic (1.1) that derives its sovereignty (6.1) from the
people. The sovereignty rests with the Turkish Nation, who delegates its exercise to an elected unicameral parliament, the Turkish
Grand National Assembly.
The Article 4 declares the immovability of the founding principles of the Republic
defined in the first three Articles 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". The basic nature of Turkey is laïcité (2), social
equality (2), equality before law (10), the Republican form of government (1), the
indivisibility of the Republic and of the Turkish Nation (3.1)." Thus, it sets out to
found a unitary nation-state based on the principles ofsecular democracy.
Fundamental Aims and Duties of the State is defined in Article 5. Constitution
establishes a separation of powers between the Legislative Power (7.1), Executive
Power (8.1), and Judicial Power (9.1) of the state. The separation of powers between
the legislative and the executive is a loose one, whereas the one between the
Seal of the Assembly
executive and the legislative with thejudiciary is a strict one.
Part Two: Individual and Group Rights
Part Two of the constitution is the bill of rights. Article Twelve guarantees "fundamental rights and freedoms", which are defined as
including the:
Article 17: Personal Inviolability, Material and SpiritualEntity of the Individual (right to life)
Article 18: Prohibition of Forced Labour
Article 19: Personal Liberty and Security s( ecurity of person)
Article 20: Privacy of Individual Life
Article 21: Inviolability of the Domicile
Article 22: Freedom of Communication
Article 23: Freedom of Residence and Movement
Article 24: Freedom of Religion and Conscience
Article 25: Freedom of Thought and Opinion
Article 26: Freedom of Expression and Dissemination of Thought
Article 27: Freedom of Science and the Arts
Article 35: Right to property
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".
Many of these entrenched rights have their basis in international bills of rights, such as the Universal Declaration of Human Rights,
[5]
which Turkey was one of the first nations to ratify in December 1948.
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".
Article 66 defines a Turkish civic identity: "everyone bound to the Turkish state through the bond of citizenship is a T
urk".
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 andfreedom 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 tobargain collectively and to strike, respectively.
Part Three: Fundamental Organs
Legislative Power
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 procedures
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 ratifytreaties of the Republic with other sovereign states (A90).
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 their functioning and guarantees their full independence (A137-140). The judiciary conforms to the
principle of separation of powers not only through its independence from theexecutive and legislative branches of government but by
being divided into two entities,Administrative Justice and Judicial Justice, with the Danıştay (The Council of State) the highest court
for the former (A155) andYargıtay (High Court of Appeals) the highest court for the latter (154).
Part Four, Section Two allows for a Constitutional Court that rules on the conformity of laws and governmental decrees to the
Constitution. It may hear cases referred by the President of the Republic, the government, the members of Parliament (A150) or any
judge before whom a constitutional issue has been raised by a defendant or a plaintiff (A152). The Constitutional Court has the right
to both a priori and a posteriori review (respectively, before and after enactment), and can invalidate whole laws or decrees and ban
their application for all future cases (A153).
Executive
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 executive, consisting of the Prime
Minister and the Council of Ministers (A109).
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) are subordinate to the President, in the capacity of Commander-in-Chief. 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 (A1
17).
National Security Council is an advisory organization, 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" (A1
18).
Revision
In Article 175, it also sets out the procedure 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.
A revision of the Constitution was approved on September 13, 2010 by a 58 percent approval given by the 39 million people who
voted. The change would allow the National Assembly to appoint a number of high-court judges, would reduce the power of the
military court system over the civilian population and would improve human rights. The changes also remove the immunity from
[6]
prosecution the former leaders of the early 1980s military coup gave themselves.
Critique
Ethnic rights
The Constitution of 1982 has been criticized as limiting individual cultural and political liberties in comparison with the previous
constitution of 1961. 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. According to the
European Union, the constitution denies the fundamental rights of theKurdish population because some articles, especially article 42,
are against minority rights.[7] 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.[8] 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 criticized by the EU, human rights organizations and minorities of Turkey.[7] The Kurds, who comprise between 10-
[7]
20% of the Turkish population are not allowed to get education in their mother tongue because of this article.
Currently Circassian, Kurdish, Zaza, Laz languages can be chosen as lessons in some public schools.[9][10][11] Since 2003, private
courses teaching minority languages can be offered, but the curriculum, appointment of teachers, and criteria for enrollment are
subject to significant restrictions. All private Kurdish courses were closed down in 2005 because of bureaucratic barriers and the
reluctance of Kurds to have to "pay to learn their mother tongue."[12] In 2015, only 28 schools provided Kurdish language as a
selective course. Also, neither private nor public schools are still allowed to use Kurdish language or other languages than Turkish as
a first language.[7]
Freedom of expression
The constitution grants freedom of expression, as declared in Article 26. Article 301 of the Turkish penal code states that "A person
who publicly denigrates the Turkish Nation, 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 criticise shall not constitute a
crime".
Orhan Pamuk's remark "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 and led to his trial in 2005. The complaint against Orhan
Pamuk was made by a group of lawyers led byKemal Kerinçsiz and charges filed by a district prosecutor under the Article 301 of the
Turkish Penal Code. Pamuk was later released and charges annulled by the justice ministry on a technicality. The same group of
lawyers have also filed complaints against other lesser-known authors on the same grounds. Kerinçsiz was indicted in the 2008
Ergenekon investigation, along with many others.
Influence of the military
Although modified several times in the last three decades, specifically within the framework of European Union reforms, the 1982
constitution is also criticised for giving the military too much influence in political affairs via the National Security Council. Turkish
Armed Forces see themselves as the guardians of the secular and unitary nature of the Republic along with Atatürk's reforms and
have intervened by taking over the government three times:[13] in 1960 , in 1971 and in 1980.
See also
Turkish constitutional referendum, 1982
Turkish constitutional referendum, 2007
Turkish constitutional referendum, 2010
Turkish constitutional referendum, 2017
References
1. "1982 ANAYASASI'NDA DEĞİŞEN MADDELER"(http://www.odatv.com/n.php?n=177-maddeden-113u-degisti-hangi
-82-anayasasi-1110111200). Odatv.com. Retrieved April 2016. Check date values in: |accessdate= (help)
2. Lowen, Mark. "Why is Turkey holding a referendum?"(https://www.bbc.com/news/world-europe-38883556). BBC.
Retrieved 21 February 2017.
3. Ergun Ozbudun, Turkey’s Constitutional Reform and the 2010 Constitutional Referendum , IEMed 2011, available at
http://www.iemed.org/observatori-en/arees-danalisi/arxius-adjunts/anuari/med.2011/Ozbudun_en.pdf(accessed Mar.
3, 2016).
4. Constitution of the Republic of Turkey, art. 59, official English translation (Turkish Grand National Assembly [TBMM]),
available at https://global.tbmm.gov.tr/docs/constitution_en.pdf (accessed Mar. 3, 2016).
5. "Adoption of the Universal Declaration, 1948 P
ARIS" (http://www.aidh.org/uni/Formation/02Charte_a.htm). The
Universal Declaration of Human Rights. Collège universitaire Henry Dunant. 11 March 2008. Retrieved September
2008. Check date values in: |accessdate= (help)
6. "Turkey's Erdogan ready to make changes after referendum win" (https://web.archive.org/web/20100916180854/htt
p://www.theglobeandmail.com/news/world/europe/turkeys-erdogan-ready-to-make-changes-after-reform-referendum
-win/article1704693/). The Globe and Mail. Toronto. Archived from the original (https://www.theglobeandmail.com/ne
ws/world/europe/turkeys-erdogan-ready-to-make-changes-after-reform-referendum-win/article1704693/) on 16
September 2010.
7. "COMMISSION STAFF WORKING DOCUMENT" (http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151
110_report_turkey.pdf) (PDF). Retrieved 9 April 2016.
8. http://ec.europa.eu/transparency/regdoc/rep/2/2005/EN/2-2005-1426-EN-1-0.Pdf
9. "ÇERKES-FED, Seçmeli Anadili Dersleri İçin Milli Eğitim Bakanlığı'ndaydı…"
(http://www.ozgurcerkes.com/?Syf=18&
Hbr=575788&/%C3%87erkes-Dernekleri-Federasyonu-%28%C3%87ERKES-FED%29-Genel-Sekreteri-Kenan-Kapl
an,-Milli-E%C4%9Fitim-Bakan-Yard%C4%B1mc%C4%B1s%C4%B1-Orhan-Erdem%E2%80%99i-makam%C4%B1n
da-ziyaret-ederek-se%C3%A7meli-anadili-derslerinde-) . Ozgurcerkes.com. Retrieved April 2016. Check date values
in: |accessdate= (help)
10. "Siverek'te 'Anadil' günü kutlaması"(http://www.odatv.com/n.php?n=siverekte-anadil-gunu-kutlamasi-2202141200)
.
Odatv.com. 2014-02-22. Retrieved April 2016. Check date values in: |accessdate= (help)
11. "Lazca Ders Müfredatı Hazır - Beyza Kural"(http://www.bianet.org/bianet/insan-haklari/149618-lazca-ders-mufredati-
hazir). bianet. Retrieved April 2016. Check date values in: |accessdate= (help)
12. "Archived copy" (https://web.archive.org/web/20090429185606/http://www .minorityrights.org/download.php?id=425).
Archived from the original (http://www.minorityrights.org/download.php?id%3D425) on April 29, 2009. Retrieved
June 17, 2009.
13. Serra Cremer, A. Turkey Between the Ottoman Empire and theEuropean Union: Shifting Political Authority Through
the Constitutional Reform(http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2421&context=ilj), Fordham
International Law Journal. Volume 35, Issue 1, 2016p. 282, 297, 298
Further reading
(in Turkish) The current constitutionfrom the Turkish Grand National Assembly.
External links
Turkish Constitutional Law Materials in English by Kemal Gözler, Professor of Constitutional Law, Uludag University
Law School.
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