CONSTITUTIONAL LAW

The first Constitution was enacted in 1876 before establishing The Republic Of Turkey. The era of “National Liberation” is a most interesting period in Turkey’s constitutional history and full of constitutional innovations.

In this period, The Grand National Assembly enacted a Constitution in 1921. This was a short but very important document with 23 articles. For the first time, it proclaimed the principle of “national sovereignty” calling itself the “only and true representative of the nation”. Legislative and executive powers were vested in the Assembly, as they had been since the opening of the Assembly on 23 April 1920. The sultanate was abolished after the final victory at the “War of Independence” and the Republic was officially proclaimed on 29 October 1929.

Since the Constitution of 1921 was not meant to be a constitution in a full sense of the world; rather, it was a document dealing only with the most urgent constitutional problems of the moment, The Turkish Republic clearly needed a new Constituiton.

So, the new Constitution adopted by the Grand National Assembly in 1924 retained most of the basic principles of the 1921 Constitution, notably the principle of national sovereignty. Theoretically, both legistative and executive powers were concentrated in the Assembly, but the Assembly was to exercise its executive authority through the Presedent of the Republic elected by it and a Council of Ministers appointed by the Presedent. The Assembly could at any time control the Council of Ministers and dismiss it, while the Council had no power to dissolve the Assembly to hold new elections.The Constitution of 1924 was undoubtedly a democratic constitution in spirit. But this was a “majoritarian” or “Rousseauist” concept of democracy, than a “liberal” democracy based on an intricate system of checks and balanced.

Lack of constitutional checks and balances did not pose a major problem during the single-party years, since a single a single-party system itself implies a heavy concentration of governmental authority. But, with the transition to a multy-party system in 1946, the weakness of the Constitution became obvious. In the late 1950’s, tension increased greatly between the governing Democrats and the opposite Republicans. Finally, on 27 May 1960, units of the Turkish Armed forces overthrew the Menderes government.

The Constitution 1961 was prepared and adopted by the Constituent Assembly and finally came into force after being ratified by popular vote on 9 July 1961. In many respects, the Constitution of 1961 represented a reaction to the severe problems observed in the functioning of the 1924 Constitution. Clearly, the new Constitution was inspired by a pluralistic , rather than a majoritarian , concept of democracy. Instead of a constitutional structure based on an omnipotent legislative assembly, a system of checks and balances was introduced and powerful guarantees for minority rights were provided.

In spide of several amendments in 1971 and 1973, towards the end of the 1970’s, the Turkish political system faced an increasingly serious crisis brought about by political polarization, violence and terrorism. This instabilty led to the military takeover of 12 September 1980, which created a “National Security Council” headed by Kenan Evren, then the chief of the General Staff. The Counstituent Assembly prepared a new Constitution and a referendum took place in 1982.

Just as the 1961 Constitution was a reaction to a cetain problems encountered by its predecessor, so is the 1982 Constitution. The framers of the 1982 Constitution approached their task with the assumption that the political crisis of the 1970’s was due to the erosion of the state authority and more, specifically, to the weakness of the executive branch. This, in turn, was attributed to what was perceived as the excessive permissiveness of the 1961 Constitution and its equally excessive limitations on the exercises of the executive authority. The underlying objective of the framers of the Contitution was, therefore, a “strong state and strong executive”. Almost every single departure of the 1982 Constitution from its predecessor can be construed in these terms.

The Constitution stipulates that the Republic of Turkey is committed to Atatürk nationalism. The democratic character of the Republic is stated in many articles. Besides, the Constitution recognizes all basic human rights commonly found in liberal democratic constitutions, such as freedoms of speech, press, religion, assosiation, assembly, travel and communications, right to property and so on. The Constitution, like its predecessors, retained the Kemalist notion of secularism. And also, it is stated again the “rule of law” or “supremacy of law” principle which signifies a system where governmental agencies must operate within the framework of law and their actions are subject to review by independent judicial authorities.