Constitution of Turkey
Encyclopedia
This article relates to a current event. See also the Turkish constitutional referendum, 2010
The Constitution of the Republic of Turkey (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 towards its citizens. The constitution also establishes the right
s 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 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. It was last amended in 2010.
(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 of secular 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 executive and the legislative with the judiciary
is a strict one.
. Article Twelve guarantees "fundamental rights and freedoms", which are defined as including the:
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
, which Turkey was one of the first nations to ratify in December 1948.
, 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 Turk".
, respectively.
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.
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 ratify treaties
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).
shall be exercised by independent court
s 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 law 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).
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".
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 (A117).
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" (A118).
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 government 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 prosecution the former leaders of the early 1980s military coup gave themselves.
in comparison with the previous constitution of 1961
. Critics claim that the constitution denies the fundamental rights of the Kurdish
population. 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. 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 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."
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 criticize 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 by Kemal 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.
, 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
.
Turkish constitutional referendum, 2010
A constitutional referendum on a number of changes to the constitution was held in Turkey on 12 September 2010. The results showed the majority supported the constitutional amendments, with 58% in favour and 42% against. The changes were aimed at bringing the constitution into compliance with...
The Constitution of the Republic of Turkey (also known as the Constitution of 1982) is Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
's fundamental law
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
. It establishes the organization of the government and sets out the principles and rules of the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
's conduct along with its responsibilities towards its citizens. The constitution also establishes the right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s and responsibilities of the latter while setting the guidelines for the delegation and exercise of sovereignty that belongs to the Turkish people
Turkish people
Turkish people, also known as the "Turks" , are an ethnic group primarily living in Turkey and in the former lands of the Ottoman Empire where Turkish minorities had been established in Bulgaria, Cyprus, Bosnia and Herzegovina, Georgia, Greece, Kosovo, Macedonia, and Romania...
.
The constitution was ratified on 7 November 1982. It replaced the earlier Constitution of 1961
Turkish Constitution of 1961
The Constitution of 1961 was the fundamental law of Turkey from 1961 to 1982. It was introduced following the 1960 coup d'état, replacing the earlier Constitution of 1924. It was approved in a referendum held on 9 July 1961, with 61.7% of the nation voting in favor...
.
History
Since its founding, the modern Turkish state has been governed under five documents:- The Constitution of 1876,
- The Constitution of 1921Turkish Constitution of 1921The Constitution of 1921 was the fundamental law of Turkey for a brief period from 1921 to 1924. The first constitution of the modern Turkish state, it was ratified by the Grand National Assembly of Turkey in January 1921. It was a simple document consisting of only 23 short articles...
, - The Constitution of 1924Turkish Constitution of 1924The Constitution of 1924, formally titled the Constitution of the Republic of Turkey , was the fundamental law of Turkey from 1924 to 1961. It replaced the Constitution of 1921 and was ratified by the Grand National Assembly of Turkey following the proclamation of the republic on 29 October 1923....
, - The Constitution of 1961Turkish Constitution of 1961The Constitution of 1961 was the fundamental law of Turkey from 1961 to 1982. It was introduced following the 1960 coup d'état, replacing the earlier Constitution of 1924. It was approved in a referendum held on 9 July 1961, with 61.7% of the nation voting in favor...
, and, - The current Constitution of 1982.
The current constitution was ratified by popular referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
during the military junta of 1980-1983
Military coup in Turkey, 1980
The 12 September 1980 Turkish coup d'état, headed by Chief of the General Staff General Kenan Evren, was the third coup d'état in the history of the Republic after the 1960 coup and the 1971 "Coup by Memorandum"....
. 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. It was last amended in 2010.
Part One: Founding principles
The Constitution asserts that Turkey is a secular (2.1) and democraticDemocracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
(2.1), republic
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
(1.1) that derives its sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
(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
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
, defined as the "material and spiritual well-being of the Republic". The basic nature of Turkey is laïcité
Laïcité
French secularism, in French, laïcité is a concept denoting the absence of religious involvement in government affairs as well as absence of government involvement in religious affairs. French secularism has a long history but the current regime is based on the 1905 French law on the Separation of...
(2), social equality
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
(2), equality before law
Legal egalitarianism
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
(10), the Republican form of government
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
(1), the indivisibility of the Republic and of the Turkish Nation (3.1)." Thus, it sets out to found a unitary
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
nation-state
Nation-state
The nation state is a state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. The state is a political and geopolitical entity; the nation is a cultural and/or ethnic entity...
based on the principles of secular democracy.
Fundamental Aims and Duties of the State is defined in Article 5. Constitution establishes a separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
between the Legislative Power (7.1), Executive Power (8.1), and Judicial Power (9.1) of the state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
. The separation of powers between the legislative and the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
is a loose one, whereas the one between the executive and the legislative with the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
is a strict one.
Part Two: Individual and Group Rights
Part Two of the constitution is the bill of rightsBill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. Article Twelve guarantees "fundamental rights and freedoms", which are defined as including the:
- Article 17: Personal Inviolability, Material and Spiritual Entity of the Individual (right to lifeRight to lifeRight to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
) - Article 18: Prohibition of Forced Labour
- Article 19: Personal Liberty and Security (security of personSecurity of personSecurity of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
) - 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 propertyRight to propertyThe right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private 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
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, such as the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, 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 "languageLanguage
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
, race, color, sex
Sex
In biology, sex is a process of combining and mixing genetic traits, often resulting in the specialization of organisms into a male or female variety . Sexual reproduction involves combining specialized cells to form offspring that inherit traits from both parents...
, political opinion
Freedom of thought
Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
, philosophical convictions or religious beliefs
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
" and guaranteeing their equality in the eyes of the law
Legal egalitarianism
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
. 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
Turkish language
Turkish is a language spoken as a native language by over 83 million people worldwide, making it the most commonly spoken of the Turkic languages. Its speakers are located predominantly in Turkey and Northern Cyprus with smaller groups in Iraq, Greece, Bulgaria, the Republic of Macedonia, Kosovo,...
". Article 66 defines a Turkish civic identity: "everyone bound to the Turkish state through the bond of citizenship is a Turk".
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 assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, respectively.
Group rights
ClassesSocial class
Social classes are economic or cultural arrangements of groups in society. Class is an essential object of analysis for sociologists, political scientists, economists, anthropologists and social historians. In the social sciences, social class is often discussed in terms of 'social stratification'...
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
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
and to strike
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
, respectively.
Legislative Power
Article Seven provides for the establishment of a unicameralUnicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...
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
National sovereignty
National sovereignty is the doctrine that sovereignty belongs to and derives from the nation, an abstract entity normally linked to a physical territory and its past, present, and future citizens. It is an ideological concept or doctrine derived from liberal political theory...
: "members of the Turkish Grand National Assembly represent, not merely their own constituencies or constituents, but the Nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
as a whole".
Part Three, Chapter One (Articles 75-100) sets the rules for the election
Elections in Turkey
Turkey elects on the national level a legislature. The Grand National Assembly of Turkey has 550 members, elected for a four year term by a system based on proportional representation...
and functioning of the Turkish Grand National Assembly as the legislative organ, as well as the conditions of eligibility (A76), parliamentary immunity
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
(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 ratify treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
of the Republic with other sovereign states (A90).
The President of the Republic
President of Turkey
The President of Turkey is the head of state of the Republic of Turkey. The presidency is largely a ceremonial office but has some important functions...
is elected by the parliament and has a largely ceremonial role as the Head of State
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
, "representing the Republic of Turkey and the unity of the Turkish Nation" (A104).
Judiciary
Article Nine affirms that the "judicial powerJudiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
shall be exercised by independent court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s 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
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
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
Turkish Constitutional Court
The Constitutional Court of Turkey is the highest legal body for constitutional review in Turkey. It "examines the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly"...
that statutes on the conformity of law and governmental decrees
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
to the Constitution, and it can be seized by the President of the Republic, the government, the members of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
(A150) or any judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
before whom an exception of unconstitutionality has been raised by a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
or a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
(A152). The Constitutional Court has the right to both a priori and a posteriori
A Posteriori
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review, and it 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 government as the executive comprising the Prime MinisterPrime Minister of Turkey
The Prime Minister of the Turkey is the head of government in Turkish politics. The prime minister is the leader of a political coalition in the Turkish parliament and the leader of the cabinet....
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
University
A university is an institution of higher education and research, which grants academic degrees in a variety of subjects. A university is an organisation that provides both undergraduate education and postgraduate education...
(A130-132), local administrations
Local administrative unit
Generally, a local administrative unit is a low level administrative division of a country, ranked below a province, region, or state. Not all countries describe their locally governed areas this way, but it can be descriptively applied anywhere to refer to counties, municipalities, etc.In the...
(A127), fundamental public services
Public services
Public services is a term usually used to mean services provided by government to its citizens, either directly or by financing private provision of services. The term is associated with a social consensus that certain services should be available to all, regardless of income...
(A128) and national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
(A117-118). Article 123 stipulates that "the organisation and functions of the administration are based on the principles of centralization
Centralization
Centralisation, or centralization , is the process by which the activities of an organisation, particularly those regarding planning and decision-making, become concentrated within a particular location and/or group....
and local administration".
National security
The Turkish Armed Forces
Turkish Armed Forces
The Turkish Armed Forces are the military forces of the Republic of Turkey. They consist of the Army, the Navy , and the Air Force...
(TAF) are subordinate to the President, in the capacity of Commander-in-Chief. The Chief of General Staff
Chief of the Turkish General Staff
The General Staff of the Republic of Turkey presides over the Armed Forces of the Republic of Turkey, comprising the Army, Navy and Air Force...
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
National Security Council (Turkey)
The National Security Council comprises the Chief of Staff, select members of the Council of Ministers, and the President of the Republic...
is an advisory organization, comprising the Chief of General Staff
Chief of the Turkish General Staff
The General Staff of the Republic of Turkey presides over the Armed Forces of the Republic of Turkey, comprising the Army, Navy and Air Force...
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 procedure of its own revision and amendment by either referendumReferendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
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 government 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 prosecution the former leaders of the early 1980s military coup gave themselves.
Ethnic rights
The Constitution of 1982 has been criticized as limiting individual cultural and political libertiesLiberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
in comparison with the previous constitution of 1961
Turkish Constitution of 1961
The Constitution of 1961 was the fundamental law of Turkey from 1961 to 1982. It was introduced following the 1960 coup d'état, replacing the earlier Constitution of 1924. It was approved in a referendum held on 9 July 1961, with 61.7% of the nation voting in favor...
. Critics claim that the constitution denies the fundamental rights of the Kurdish
Kurds in Turkey
Ethnic Kurds compose a significant portion of the population in Turkey . Unlike the Turks, the Kurds speak an Indo-European language...
population. Per the Treaty of Lausanne
Treaty of Lausanne
The Treaty of Lausanne was a peace treaty signed in Lausanne, Switzerland on 24 July 1923, that settled the Anatolian and East Thracian parts of the partitioning of the Ottoman Empire. The treaty of Lausanne was ratified by the Greek government on 11 February 1924, by the Turkish government on 31...
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
Constitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
(ratified in 1958), as well.
Article Three states that the official language of the Republic of Turkey is Turkish
Turkish language
Turkish is a language spoken as a native language by over 83 million people worldwide, making it the most commonly spoken of the Turkic languages. Its speakers are located predominantly in Turkey and Northern Cyprus with smaller groups in Iraq, Greece, Bulgaria, the Republic of Macedonia, Kosovo,...
. The Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
’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
First language
A first language is the language a person has learned from birth or within the critical period, or that a person speaks the best and so is often the basis for sociolinguistic identity...
in schools. The Turkish constitutional principle
Principle
A principle is a law or rule that has to be, or usually is to be followed, or can be desirably followed, or is an inevitable consequence of something, such as the laws observed in nature or the way that a system is constructed...
of not allowing the teaching of other languages as first languages in schools to its citizens
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
, other than the official one
Official language
An official language is a language that is given a special legal status in a particular country, state, or other jurisdiction. Typically a nation's official language will be the one used in that nation's courts, parliament and administration. However, official status can also be used to give a...
, is similar to the policies of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and Austria
Austria
Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the...
, all members of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. 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."
Freedom of expression
The constitution grants freedom of expression, as declared in Article 26. Article 301 of the Turkish penal codeArticle 301 (Turkish penal code)
Article 301 is a controversial article of the Turkish Penal Code making it illegal to insult Turkey, the Turkish ethnicity, or Turkish government institutions...
states that "A person who publicly denigrates the Turkish Nation, the Republic or the Grand National Assembly of Turkey
Grand National Assembly of Turkey
The Grand National Assembly of Turkey , usually referred to simply as the Meclis , is the unicameral Turkish legislature. It is the sole body given the legislative prerogatives by the Turkish Constitution. It was founded in Ankara on 23 April 1920 in the midst of the Turkish War of Independence...
, 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".
Orhan Pamuk
Orhan Pamuk
Ferit Orhan Pamuk , generally known simply as Orhan Pamuk, is a Turkish novelist. He is also the Robert Yik-Fong Tam Professor in the Humanities at Columbia University, where he teaches comparative literature and writing....
'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 by Kemal Kerinçsiz
Kemal Kerinçsiz
Kemal Kerinçsiz is a Turkish lawyer, famous for filing complaints against more than 40 Turkish journalists and authors for "insulting Turkishness"...
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
Ergenekon network
Ergenekon is the name given to an alleged clandestine, Kemalist ultra-nationalist organization in Turkey with possible ties to members of the country's military and security forces...
, along with many others.
Influence of the military
The constitution is also criticised for giving the Turkish Armed ForcesTurkish Armed Forces
The Turkish Armed Forces are the military forces of the Republic of Turkey. They consist of the Army, the Navy , and the Air Force...
, who see themselves as the guardians of the secular and unitary nature of the Republic along with Atatürk's reforms
Atatürk's Reforms
Atatürk's Reforms were a series of political, legal, cultural, social and economic reforms that were designed to modernize the new Republic of Turkey into a democratic and secular nation-state...
, too much influence in political affairs via the National Security Council
National Security Council (Turkey)
The National Security Council comprises the Chief of Staff, select members of the Council of Ministers, and the President of the Republic...
.
External links
- Turkish Constitutional Law Materials in English by Kemal Gözler, Professor of Constitutional Law, Uludag UniversityUludag UniversityUludag University is a university located in Bursa, Turkey. The research and education conducted by the university have an emphasis on medicine, engineering, natural sciences and art. In particular, Faculty of Medicine and Mechanical Engineering Department have several well-reputed academicians in...
Law School.