The Constitution of Turkey, formally known as the Constitution of the Republic of Türkiye (), and informally as the Constitution of 1982 (), is

Turkey Turkey, officially the Republic of Türkiye, is a country mainly located in Anatolia in West Asia, with a relatively small part called East Thrace in Southeast Europe. It borders the Black Sea to the north; Georgia (country), Georgia, Armen ...

's fundamental law. It establishes the organization of the government, and sets out the principles and rules of the

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

's conduct along with its responsibilities in regards to its

citizen Citizenship is a membership and allegiance to a sovereign state. Though citizenship is often conflated with nationality in today's English-speaking world, international law does not usually use the term ''citizenship'' to refer to nationality ...

s. The constitution also establishes the

rights Rights are law, legal, social, or ethics, ethical principles of freedom or Entitlement (fair division), entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal sy ...

and responsibilities of the latter while setting the guidelines for the delegation and exercise that sovereignty belongs entirely and without doubt to the people. The constitution was ratified on 7 November 1982. It replaced the earlier Constitution of 1961. The constitution was amended 21 times, three of them through a referendum:

2007 2007 was designated as the International Heliophysical Year and the International Polar Year. Events January * January 1 **Bulgaria and Romania 2007 enlargement of the European Union, join the European Union, while Slovenia joins the Eur ...

2010 The year saw a multitude of natural and environmental disasters such as the 2010 Haiti earthquake, the Deepwater Horizon oil spill, and the 2010 Chile earthquake. The 2009 swine flu pandemic, swine flu pandemic which began the previous year ...

2017 2017 was designated as the International Year of Sustainable Tourism for Development by the United Nations General Assembly. Events January * January 1 – Istanbul nightclub shooting: A gunman dressed as Santa Claus opens fire at the ...

, one of them partly through referendum:

1987 Events January * January 1 – Bolivia reintroduces the Boliviano currency. * January 2 – Chadian–Libyan conflict – Battle of Fada: The Military of Chad, Chadian army destroys a Libyan armoured brigade. * January 3 – Afghan leader ...

. As of April 2016, 113 of the 177 articles of the Constitution of 1982 were amended overall.

History

The first constitution of the

Ottoman Empire The Ottoman Empire (), also called the Turkish Empire, was an empire, imperial realm that controlled much of Southeast Europe, West Asia, and North Africa from the 14th to early 20th centuries; it also controlled parts of southeastern Centr ...

was adopted in

1876 Events January * January 1 ** The Reichsbank opens in Berlin. ** The Bass Brewery Red Triangle becomes the world's first registered trademark symbol. *January 27 – The Northampton Bank robbery occurs in Massachusetts. February * Febr ...

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 A referendum, plebiscite, or ballot measure is a Direct democracy, direct vote by the Constituency, electorate (rather than their Representative democracy, representatives) on a proposal, law, or political issue. A referendum may be either bin ...

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. Major amendments were made in 2010. A minor amendment to Article 59, on the permissible means for challenging "decisions of sport federations relating to administration and discipline of sportive activities," was made in March 2011. Following the 2017 constitutional referendum, fundamental changes were introduced including changing the

parliamentary system A parliamentary system, or parliamentary democracy, is a form of government where the head of government (chief executive) derives their Election, democratic legitimacy from their ability to command the support ("confidence") of a majority of t ...

in Turkey to a

presidential system A presidential, strong-president, or single-executive system (sometimes also congressional system) is a form of government in which a head of government (usually titled " president") heads an executive branch that derives its authority and l ...

. The executive, legislative and judiciary power under control by the president may cause less democracy.

Overview

Part one: Founding principles

The Constitution asserts that Turkey is a

secular Secularity, also the secular or secularness (from Latin , or or ), is the state of being unrelated or neutral in regards to religion. The origins of secularity can be traced to the Bible itself. The concept was fleshed out through Christian hi ...

( 2.1) and democratic ( 2.1)

republic A republic, based on the Latin phrase ''res publica'' ('public affair' or 'people's affair'), is a State (polity), state in which Power (social and political), political power rests with the public (people), typically through their Representat ...

( 1.1) that derives its

sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...

( 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 A preamble () is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the su ...

also invokes the principles of

nationalism Nationalism is an idea or movement that holds that the nation should be congruent with the state. As a movement, it presupposes the existence and tends to promote the interests of a particular nation, Smith, Anthony. ''Nationalism: Theory, I ...

, defined as the "material and spiritual well-being of the Republic". The basic nature of Turkey is

laïcité (; 'secularism') is the constitutional principle of secularism in France. Article 1 of the French Constitution is commonly interpreted as the separation of civil society and religious society. It discourages religious involvement in governmen ...

( 2),

social equality Social equality is a state of affairs in which all individuals within society have equal rights, liberties, and status, possibly including civil rights, freedom of expression, autonomy, and equal access to certain public goods and social servi ...

( 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 A nation state, or nation-state, is a political entity in which the state (a centralized political organization ruling over a population within a territory) and the nation (a community based on a common identity) are (broadly or ideally) con ...

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 The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

between the Legislative Power ( 7.1), Executive Power ( 8.1), and Judicial Power ( 9.1) of the

. The separation of powers between the

legislative A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...

and the executive is a loose one, whereas the one between the executive and the legislative with the

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

is a strict one.

Part Two: Individual and Group Rights

Part Two of the constitution is the

bill of rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...

. 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 life The right to life is the belief that a human (or other animal) has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including: capital punishment, with some ...

) * Article 18: Prohibition of Forced Labour * Article 19: Personal Liberty and Security ( security 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 The right to property, or the right to own property (cf. ownership), is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typicall ...

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 The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal D ...

, 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 Language is a structured system of communication that consists of grammar and vocabulary. It is the primary means by which humans convey meaning, both in spoken and signed language, signed forms, and may also be conveyed through writing syste ...

, race,

color Color (or colour in English in the Commonwealth of Nations, Commonwealth English; American and British English spelling differences#-our, -or, see spelling differences) is the visual perception based on the electromagnetic spectrum. Though co ...

, 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".

Freedom of expression

Article 26 establishes

freedom of expression Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been r ...

and Articles 27 and 28 the freedom of the press, while Articles 33 and 34 affirm the freedom of association and

freedom of assembly Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of individuals to peaceably assemble and collectively express, promote, pursue, and defend their ideas. The right to free ...

, respectively.

Group rights

Classes are considered irrelevant in legal terms (A10). The Constitution affirms the right of workers to form

labor union A trade union (British English) or labor union (American English), often simply referred to as a union, is an organization of workers whose purpose is to maintain or improve the conditions of their employment, such as attaining better wages ...

s "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.

Part three: Fundamental organs

Legislative power

Article Seven provides for the establishment of a

unicameral Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature consisting of one house or assembly that legislates and votes as one. Unicameralism has become an increasingly common type of legislature, making up nearly ...

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 A nation state, or nation-state, is a political entity in which the state (a centralized political organization ruling over a population within a territory) and the nation (a community based on a common identity) are (broadly or ideally) co ...

: "members of the Turkish Grand National Assembly represent, not merely their own

constituencies An electoral (congressional, legislative, etc.) district, sometimes called a constituency, riding, or ward, is a geographical portion of a political unit, such as a country, state or province, city, or administrative region, created to provi ...

or constituents, but the

Nation A nation is a type of social organization where a collective Identity (social science), identity, a national identity, has emerged from a combination of shared features across a given population, such as language, history, ethnicity, culture, t ...

as a whole". ''Part Three, Chapter One'' (Articles 75–100) sets the rules for the

election An election is a formal group decision-making process whereby a population chooses an individual or multiple individuals to hold Public administration, public office. Elections have been the usual mechanism by which modern representative d ...

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 A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...

of the Republic with other sovereign states (A90). The President of the Republic is elected by

direct election Direct election is a system of choosing political officeholders in which the voters directly cast ballots for the persons or political party that they want to see elected. The method by which the winner or winners of a direct election are chosen ...

and has an executive role as the

Head of State A head of state is the public persona of a sovereign state.#Foakes, Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representative of its international persona." The name given to the office of head of sta ...

, "representing the Republic of Turkey and the unity of the Turkish Nation" (A104). The President was elected by the parliament until 2007, and had a ceremonial role until 2017.

Judiciary

Article Nine affirms that the " judicial power shall be exercised by independent

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

s 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

not only through its independence from the executive and

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) and '' Yargıtay'' (High Court of Appeals) the highest court for the latter (154). ''Part Four, Section Two'' allows for a

Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...

that rules on the conformity of

laws Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

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 A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

before whom a constitutional issue has been raised by a

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

or a

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

(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 President of the Republic and the

Council of Ministers Council of Ministers is a traditional name given to the supreme Executive (government), executive organ in some governments. It is usually equivalent to the term Cabinet (government), cabinet. The term Council of State is a similar name that also m ...

(A109). Executive power was shared between the Prime Minister and the Council of Ministers until 2017. ''Part Three, Chapter Two, Section Four'' organizes the functioning of the central administration and certain important institutions of the Republic such as its

universities A university () is an educational institution, institution of tertiary education and research which awards academic degrees in several Discipline (academia), academic disciplines. ''University'' is derived from the Latin phrase , which roughly ...

(A130-132), local administrations (A127), fundamental

public services A public service or service of general (economic) interest is any service (economics), service intended to address the needs of aggregate members of a community, whether provided directly by a public sector agency, via public financing availab ...

(A128) and

national security National security, or national defence (national defense in American English), is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of ...

(A117-118). Article 123 stipulates that "the organisation and functions of the administration are based on the principles of

centralization Centralisation or centralization (American English) is the process by which the activities of an organisation, particularly those regarding planning, decision-making, and framing strategies and policies, become concentrated within a particular ...

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 the Turkish General Staff, Chief of General Staff of the TAF is responsible to the President 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 (Turkey), National Security Council is an advisory organization, comprising the Chief of the Turkish General Staff, Chief of General Staff, the four main Commanders of the TAF, the President and select members of the Council of Ministers, to develop the "national security policy of the state" (A118).

Revision and amendments

In Article 175, it also sets out the procedure of its own constitutional revision, revision and amendment by either

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 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 Liberty, liberties in comparison with the previous Turkish Constitution of 1961, constitution of 1961. Per the Treaty of Lausanne which established the Turkish Republic, legally, the only minorities are Greek people, Greeks, Armenian people, Armenians and Jews in Turkey, 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 the Kurds in Turkey, Kurdish population because some articles, especially article 42, are against minority rights. 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 Citizenship, citizens, other than the Official language, official one is criticized by the EU, human rights organizations and minorities of Turkey. The Kurds in Turkey, Kurds, who comprise between 10 and 20% of the Turkish population are not allowed to get education in their mother tongue because of this article. Currently Circassian language, Circassian, Kurdish language, Kurdish, Zaza language, Zaza, Laz language, Laz languages can be chosen as lessons in some public schools. 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." In 2015, only 28 schools provided Kurmanji, 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.

Freedom of expression

The constitution grants freedom of expression, as declared in wikisource:Constitution of the Republic of Turkey#Chapter Two: Rights and Duties of the Individual, Article 26. Article 301 (Turkish penal code), Article 301 of the Turkish penal code states that "A person who publicly wiktionary:denigrate, 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 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 of Turkey, 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 network, 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 (Turkey), 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:Serra Cremer, A
Turkey Between the Ottoman Empire and the European Union: Shifting Political Authority Through the Constitutional Reform
, ''Fordham International Law Journal''. Volume 35, Issue 1, 2016 p. 282, 297, 298 1960 Turkish coup d'état, in 1960, 1971 Turkish military memorandum, in 1971 and 1980 Turkish coup d'état, in 1980.

References

External links

Turkish Constitutional Law Materials in English
b

Professor of Constitutional Law, Uludag University Law School. {{Secularism in Turkey Constitutions of Turkey, Law of Turkey Politics of Turkey Government of Turkey Legal history of Turkey 1982 in law 1982 in Turkey

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 and amendments

Critique

Ethnic rights

Freedom of expression

Influence of the military

See also

References

Further reading

External links