A Brief History of Turkish Constitutional Law

A constitution can be defined as a piece of legislation that grounds the basis of the state: its principles of establishment, the method of delegation of governance, the fundamental rights of citizens, and other fundamental freedoms. Constitutional rules are superior to whole legal rules: acts, directives of the parliament, directives of the state, etc. (Teziç, 2019). There are two sorts of states: those with a written constitution (France, Germany, Switzerland, Italy) and those without a written constitution (England, Australia, Israel). In the states that don’t have a written constitution, the superior acts in the country (for instance, Magna Carta) are counted as constitutional regulations. Today, Turkey is among the states that have a written constitution.

Figure 1: The Schema of Constitutional Democracy (Alcorn, 2019).

The first tries to prepare a constitution in Turkish history started in the Ottoman Empire. The legislation called the Basic Law of the Ottoman Empire 1876 was counted as the first constitution of the empire. This constitution had various shortcomings in its text, but it had been applied for several years. During the Turkish War of Independence, a regulation called ‘Teşkilat-ı Esasiye’ was established by the National Assembly in Ankara. Then, this regulation was accepted as the new republic's constitution, the Constitution of 1921. After the foundation of the Republic of Turkey, the Constitution of 1924 was prepared, and until 1960, it had been applied during the one-party system period and the multi-party system period. In 1960, the first military coup in the history of the republic became successful. A new constitution was prepared and introduced to the public: the Constitution of 1961. In 1980, a new military coup became successful as well and, by this coup, the Constitution of 1982 became the new constitution of the country. The last important shift in the Constitutional Act of Turkey was made in 2017, and the country was turned into a presidential system from a two-headed republic.

First Tries to Create a Constitution in the Republic of Turkey

When World War I was finished, the Ottoman Empire was among the states defeated by the allied powers with Germany, the Austro-Hungarian Empire, and Bulgaria. The empire had faced two of the hardest treaties in world history: the Mondros Armistice Agreement and the Peace Treaty of Sevres. These two treaties limited the independence of Turkish citizens a lot and gave them an opportunity to occupy Anatolian territories. In fact, Anatolia had started to be occupied by Greece, Italy, France, Armenia, and England. After the military operations of Western Countries in Anatolia, the process of the War of Independence and the Foundation of the Republic of Turkey began as well. With the leadership of Mustafa Kemal Atatürk, firstly Turkish society had taken their independence back. Then, the Republic of Turkey was founded. This process also opened the way to work on a new constitution for the new republic.

Figure 2: The Navy of England was in Bosphorus, Istanbul (Unknown, 2017).

The 1921 Constitutional Act

During this process of the occupation of Anatolia, the last meeting of the Ottoman Parliament (Mebuslar Meclisi) was held in Istanbul, and they accepted the National Pact (Misak-I Milli), which declared the indivisibility of the nation. After the acceptance of the National Pact, the armies of England occupied Istanbul and arrested the members of this congress. Some members of the Ottoman Parliament had run to Anatolia. Under the leadership of Atatürk, a new parliament gathered in a small town called Ankara. This parliament established a code called Teşkilatı-Esasiye. This code was counted as the first constitutional act of the Republic of Turkey, and then was turned into the Constitution of 1921 (Özbudun, 2019).

The basic characteristic of the Constitution of 1921 was the creation of an assembly government system, and it had benefited from The Basic Law of the Ottoman Empire a lot. It was a short constitution. There are 23 articles in its text only. These articles included elements about the nation's conscience, sovereignty, and separation of powers. The main principle of the Republic of Turkey, “Sovereignty rests unconditionally with the Nation”, was mentioned first in this constitution. This sovereignty (the power of legislation) was given to the ‘Turkish National Assembly’. This assembly was defined as the representative of the nation, an organ was authorized to make new regulations (Kırılmaz and Kırılmaz, 2014). On the other hand, the lack of regulations about fundamental rights, the order of the jurisdiction, and the absence of the presidency statute could be counted as the main deficiencies of Teşkilat-ı Esasiye. There was no authority that could prevent the creation of an unconstitutional act (Doğan, 2022). In addition, the most important deficiency of the Constitution of 1921 was the lack of separation of powers: Legislation, execution, and jurisdiction were controlled by the same central authority (Kırılmaz and Kırılmaz, 2014).

Figure 3: The Last Meeting of The First Parliament of Turkey (Unknown, 2023).

The 1924 Constitutional Act

After the foundation of the Republic of Turkey, a new constitution was needed to enter into force to start a new settlement. The Constitution of 1921 was an old-style constitution to adapt to the novelties around the world and the new world order. Therefore, for almost all members of the Turkish National Assembly, constituting a new constitution was a necessity (Doğan, 2022).

The Constitutional Act of 1924 was applied during the one-party regime period and the multi-party system period (Kırılmaz and Kırılmaz, 2014). It was a bridge between a parliamentary government system and an assembly government system, and it repealed the Kanun-i Esasi totally (Tezinç, 2019). We cannot say that the 1924 Constitutional Act was a soft constitution. For example, to change an article of the constitution, 1/3 of the members of the parliament had to offer it, and this offer had to be accepted by 2/3 of the members. Numerous establishments and institutions for a systematic state order were found by entering into the force of the 1924 Constitutional Act (Doğan, 2022).

Figure 4: Mustafa Kemal Atatürk Speaks During the Acceptance of 1924 Constitutional Act (Unknown, 2018).

The supremacy of the constitutional act was recognized by this constitution. The first four provisions of the constitution, in fact, formed the foundation of the republic:

1. Sovereignty rests unconditionally with the Nation

2. The regime of the country is a republic.

3. The capital of the country is Ankara; its official language is Turkish, and its religion is Islam

4. The capital, the form of governance, and the flag of the state cannot be changed.

After several years, the rule of “the religion of the state is Islam” was removed from the constitution, and the principles of Atatürk, especially the principle of laicism, were added. The right to elect and to be elected was given to women citizens. The 1924 Constitutional Act also included terms about fundamental rights, but we cannot talk about the protection of them. In addition, economic and social rights could not be found in this constitution as well (Doğan, 2022).

The power of legislation and execution was in the hands of the parliament and, differently from the constitution of the Ottoman, the parliament was responsible towards Turkish society. Parliament uses the power of legislation itself and the power of execution by electing a president, the prime minister who is appointed by the president, and a chamber of ministers. This execution system was a dual execution system: there was a president and a chamber of ministers (Tezinç, 2019). The president doesn’t have a right to veto. He can only delay the legislation of the parliament. The same individual could be elected as president more than once and one after the other. The president had a right to select the prime minister and had an obligation to accept new acts (Kırılmaz and Kırılmaz, 2014).

Figure 5: The Building of the First Parliament of the Republic of Turkey (Çağlar, 2010).

The Constitutional Act of 1924 was a weak constitution regulating the power of jurisdiction. Indeed, there was no article about the independence of the courts and judges; the text only included the main principles of jurisdiction. To regulate the system of jurisdiction was left to the regulations of parliament. Also, there was no supreme court to authorize the suitability of regulations to the constitution (Kırılmaz and Kırılmaz, 2014).

The 1961 Constitutional Act

Historical Process

On 14th May 1950, as a result of the election, the one-party area in Turkey was over, and the Democrat Party had taken over the governance of the country. Until 1960, the country was ruled by the Democrat Party. In particular, the last period of Democrat Party governance was an inconsistent period for Turkey politically and economically. As a result, in 1960, a military coup was made (Birant, 1992). After the military coup of 1960, the National Unity Committee took over the governance of the Republic of Turkey. This committee had superior rights: the rights of parliament to authorize and appoint the ministers (Özbudun, 2019). As a result of the self-termination of the National Unity Committee, a new democratic era started in the country. During the governance of the National Unity Committee, a new constitution started to be made by respectful constitutional law academics of the country.

Figure 6: Members of the National Unity Committee (Unknown, 2022).

Main Specialties

The Constitution of 1961 is counted as the most democratic and modern constitution in the history of the Turkish Republic (Tezinç, 2019). It brought a regulation to use the sovereignty of the nation according to the principles of the constitution and by the authorized organs of the state. The principle of the 'superiority of the constitution' was legalized by this constitution: legislation cannot be incompatible with the constitution, and the constitution is binding on three main powers of the state: legislation, execution, and jurisdiction. The principle of the social state was accepted by the 1961 Constitutional Act. The statute of professional organizations, unions, and associations was protected, and their effectiveness on local policies has increased (Özbudun, 2019). The Constitution of 1961 was the most detailed constitution about the protection of fundamental rights. On the condition of being compatible with the Constitution, these rights could be regulated by legislation.

The Constitution of 1961 accepted a system called “Soft Separation of Powers”. According to the academics who wrote this constitution, the complicated structure between the powers in the parliamentary government didn’t exist in this system (Özbudun, 2019). The power of legislation belonged to the parliament according to this legislation. At first, the Grand National Assembly of Turkey wasn’t responsible to the nation; it was responsible to the National Unity Committee. After the dismissal of the committee, it started to be responsible to the nation again (Tezinç, 2019). A new election system started to be applied. In addition to the Grand National Assembly, the second parliament, the Senate of the Republic, had the power of legislation. We can say that a bicameral legislation system was created. The Constitution of 1961 was a developed act to protect the independence of the judges, the independence of courts, and the judges' jurisdictional process was protected by this constitution. To establish a system constituted on the superiority of the constitution, a superior court protecting the constitution was needed. As a result, by the Constitution of 1961, the Constitutional Court of Turkey was founded. If legislation harms a fundamental right a lot, it can be repealed by the Constitutional Court (Özbudun, 2019). Today, this court is the highest court in the country.

Figure 7: Academics Who Prepared 1961 Constitutional Act (Unknown).

The power of execution was a dualist execution system: it was controlled by a president selected by the assembly, a chamber of ministers, and a prime minister. The role of the president was passive; the main responsibility of execution belonged to the chamber of ministers. The procedure of vote of confidence was protected. The power of execution was controlled by the power of legislation. The division of the puissance of state and its limitation was brought by this constitutional act. First, autonomous public agencies were founded by the Constitution of 1961: universities, radio channels, television channels, inspection authorities, etc. In addition, the power of local authorities was divided between some hierarchical establishments. An autonomous structure was brought to them (Özbudun, 2019).

1982 Constitutional Act

Historical Process

The area between 1960 and 1980 was a complicated area for Turkey politically. In particular, there was a huge problem of polarization: a polarization of rightists and leftists. The conflict between these two political polls harmed the country a lot. As a result, in 1980, a new military coup was made (İnandım, 1998). After the military coup of 1980, the National Security Committee had taken over the governance of the state, and they started to make a new constitution to repeal the 1961 Constitutional Act. When they took the governance, the National Security Committee declared that they were going to give the governance of the state to a secular, social, and law-based government (Tezinç, 2019). They promised to establish a new democratic system and leave the governance of the country.

Figure 8: Military Coup of 1980 (Çelik, 2019).

Main Specialties

The 1982 Constitutional Act is a more complicated, detailed, and caustic constitution. The mentality of the framework constitution was left by this constitution. Not only general principles of the governance of the state were regulated by this constitution, but a detailed text was made. The 1982 Constitutional Act was a tighter constitution than the 1961 Constitutional Act as well: the number of unchangeable articles was more than the Constitution of 1961 (Özbudun).

The bicameral legislation system was repealed by the Constitution of 1982, and a single parliament, the Turkish Grand National Assembly, became the single organ responsible for making new rules. The second responsibility of the organ of legislation was to oversee the activities of the president, chamber of ministers, and prime minister. The conditions of emergency and the condition of authoritarianism were regulated in detail (Tanör and Yüzbaşıoğlu, 2019). The 1982 Constitutional Act accepted a balanced structure between the power of legislation and the power of execution. This power was in the hands of the president and the chamber of ministers, and the president had the right to repeal the legislative proposals or force the parliament to hold a new election (Özbudun, 2019). The president has to be an impartial authority, and he also hasn’t had any responsibility to the parliament. On the other hand, the responsibility of the chamber of ministers to the parliament continued. In brief, the effectiveness of execution was increased by this constitution (Tanör and Yüzbaşıoğlu, 2019).

Figure 9: Members of National Security Committee (Unknown, 1980).

The power of jurisdiction regulated by the 1982 Constitutional Act has been criticized by lots of authorities. On the one hand, the effectiveness of military courts increased. New superior courts started to function around the country, and the effectiveness of the power of execution on jurisdiction had also increased (Tanör and Yüzbaşıoğlu, 2019). On the other hand, the protection of fundamental rights was not functional as it should be. These rights are protected by the text of the constitution, but to protect peace in the country and to protect Turkish society, they can be restricted by new regulations easily. Ward regulations were applied during this process, and the role of the authority on fundamental rights authorities increased (Özbudun, 2019). In brief, this constitution gave broad authorization to the power of legislation restricting the fundamental rights of citizens (Tanör and Yüzbaşıoğlu, 2019).

2017 Constitutional Amendments

Until 2017, several amendments have been made to the Constitution of 1982, and of course, during this interval, one of the most important amendments was about the election of the president. As a result of the amendments of 2014, the president started to be selected by society and started to be more effective in administrative power. It means going away from the parliamentary system and beginning the application of a semi-presidential system in the country (Özdemir, 2021).

Figure 10: The Scheme of Turkish Type Presidential System (Unknown, 2018).

The amendments of 2017 are counted as the most important amendments to the Constitution of 1982. Indeed, by these amendments, the country has started to be ruled by a presidential system. The new presidential system in Turkey started to be applied on 9 July 2018. It is defined as the “Turkish Style Presidential System”. In this system, execution is not under the control of the legislation; there is no procedure like a vote of confidence for the elected government. The power of execution is managed by a single authority instead of the two separate authorities, and the president has superior authority. The cabinet decrees are replaced by presidential decrees, the statute of the prime minister is removed, and areas that are not regulated by the acts of the parliament can be regulated by presidential decrees (Özbudun, 2019). New Presidential Offices and Presidential Councils were founded, and numerous independent establishments have been linked to the presidency by this system. Ministers become secretaries; they have started to be responsible to the president personally instead of responsibility to the parliament (Özdemir, 2021).

Bibliographical References

Birant, M. A. (Director). (1992). Day 32, Demirkırat [Film]. TRT.

Doğan, K. C. (2022). The Observation of 1924 Constitutional Act. Journal of Social, Artificial and Administrative Sciences, 5(6), 813-824. https://doi.org/10.26677/TR1010.2022.993

anayasa, constitution, Turkish constitution, turkey

İnandım, A. (Producer). (1998). Day 32, Military Coup of 1980 [Documentary]. Cine5.

Kırılmaz, H., & Kılıç Kırılmaz, S. (2015). Public Administration in Early Republican Period: Constitutional System, The Structure of the Governance, Beurocracy, and Reforms. Dumlupınar University Faculty of Social Science Journal, 40, 25-44.

Özbudun, E. (2019). Turkish Constitutional Law (19th ed.). Yetkin.

Özdemir, A. (2021). Innovations Brought by the Presidential Government System to the Administrative Organization of the Republic of Turkey. Journal of Academic Value Studies, 7(3), 284-297. https://doi.org/10.29228/javs.51971

Teziç, E. (2019). Constitutional Law (23rd ed.). Beta.

Tanör, B., & Yüzbaşıoğlu, N. (2019). Turkish Constitutional Law According to 1982 Constitutional Act (19th ed.). Beta.

Visual Sources

Cover Image: (2021). 1982 Constitutional Act. [Image]. Hukuk.Bikifi.com. https://hukuk.bikifi.com/unite/1982-anayasasi/

Figure 1: Alcorn, J. (2019). Prohibitions: Constitutionalism and Democracy. [Image]. Econlib.org. https://www.econlib.org/prohibitions_constitutionalism_democracy

Figure 2: (2017). October 6, the Salvation of Istanbul (1918). [Photograph]. Sözcü Journal. https://www.sozcu.com.tr/2017/gundem/6-ekim-istanbulun-kurtulusu-2039060/

Figure 3: (2023). The Last Meeting of the First Parliament of Ottoman Empire (1920). [Photograph]. Kurtulussavasi.gen.tr. https://www.kurtulussavasi.gen.tr/son-osmanli-mebusan-meclisi.html

Figure 4: (2018). Acceptance of First Constitution of Republic in The Turkish Grand National Assembly (1921). [Photograph]. Ataturk.org.au. https://ataturk.org.au/akm-belleten-cumhuriyet-tarihinde-bugun-20-nisan-t-c-ikinci-anayasa-teskilati-esasiye-kanunu-tbmm-kabulu/

Figure 5: Çağlar, E. (2010). Source of 1924 Constitutional Act (1924). [Photograph]. Dunyabulteni.net. https://www.dunyabulteni.net/tarihten-olaylar/1924-anayasasi-nereden-alinmisti-h122830.html

Figure 6: (2022). Members of National Unity Commitee, Poster of Hayat Magazine. [Photograph]. Bitmezat.com. https://www.bitmezat.com/urun/1720536/hayat-dergisi-orta-sayda-posteri-milli-birlik-komitesi-azalari-50x30-cm

Figure 7: Members of The Commitee Which Prepare 1961 Constitutional Act. [Photograph]. Anayasa.gov.tr. https://www.anayasa.gov.tr/tr/mahkeme/tarihi/1/

Figure 8: Çelik, M. M. (2019). A Scar For The Democracy of Turkey: 12 September 1980 Military Coup. [Photograph]. Independent Turkey. https://www.indyturk.com/node/69981/haber/demokrasimizin-kalbinde-m%C3%BCebbeden-kanayacak-bir-yara-12-eyl%C3%BCl-1980-darbesi

Figure 9: (1980). Poster of National Security Council members. [Photograph]. And Postcard and Publications. https://archives.saltresearch.org/handle/123456789/109956

Figure 10: (2018). The Scheme of Administration of Turkish Style Presidential System.[Photograph]. Institute of Strategic Thinking. https://www.sde.org.tr/siyaset/cumhurbaskanligi-hukumet-sisteminde-teskilat-semasi-nasil-olacak-haberi-5647