I. Brief Historical Background of Constitution-Making in Turkey

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1 THE PROCESSES AND THE PRINCIPLES OF CONSTITUTIONAL DESIGN IN TURKEY - HISTORICAL AND LEGAL PERSPECTIVE Aslı Topukcu Introduction The terms Constitution and Constitutionalism are legally and historically based on western civilizations and their foundations are demands of rights and liberties and democracy. 1 Constitutional movements has been started in United Kingdom on 13th century and then, in Northern America and in France on 18th century. Turkey has been inspired by European constitutionalism and its constitutional developments have a characteristic history since 1800 s. The purpose of the study is to introduce the long constitutional solution seeking period of Turkey by referring historical, legal and political developments. In this context, firstly historical background of the constitution-making in Turkey will be briefly evaluated and the Ottoman Constitutional Period and the Turkish Constitutional period will be outlined separately. Thereafter, the new constitutionmaking process in Turkey after 2011 general election will be examined. On the one hand, the establishment and the composition of the Constitutional Reconciliation Commission will be explained and on the other hand, the principal constitutional debates of Turkey during constitution-making process will be briefly touched. The study will finish with concluding remarks which refer also the relation between Turkish and the Mediterranean basin state s constitutionalism especially after Arab Spring period. I. Brief Historical Background of Constitution-Making in Turkey Being inspired from American and French constitutional developments, Turkish constitutional history has also a distinctive structure and characteristic. Turkish constitutional developments have been started since 1921 in the sense of Kadir Has University / Istanbul-Turkey, Department of Constitutional Law 1 Bülent Tanör, Osmanlı-Türk Anayasal Gelişmeleri (Ottoman-Turkish Constitutional Developments), Yapı Kredi Yayınları, Istanbul, 11th Edition, 2004, p

2 occidental constitutionalism. 2 However, in order to understand the Turkish constitutional history it is needed to examine the Ottoman constitutional period. The constitutional developments and the documents of the Ottoman Constitutional Period will be touched briefly. A. Developments During Ottoman Constitutional Period ( ) The Charter of Alliance of 1808 (Sened-i İttifak) is considered the first constitutional document of Ottoman Empire. Behind the Charter of Alliance of 1808, the reform period is followed by the Edict of Tanzimat of 1839 and the Edict of Islahat of These documents are called as a constitutional document and not recognised as a constitution in the sense of classical constitutional theory. Basically a constitution is the statute of the state and includes dispositions about the government model, government bodies and fundamental rights. 3 In this sense, constitutions establish, organise and form a state. The constitutional documents listed above were just an unilateral declaration and recognition by the Sultan. The basic human rights are ensured such as the security of life, human dignity, right to property, right to a fair trial by these constitutional documents. Neverthless, an effective legal remedy is not established to guarantee and enforce these provisions. 4 Besides, these reforms had been an important starting point for the road to making a constitution. The Ottoman Constitution of 1876 (Kanun-i Esasi) is promulgated by Sultan Abdulhamid II. The Constitution is prepared by a commission directly assigned by the Sultan and a constituent assembly or legislative body which was representing the people were not existing. 5 Eventually, the Constitution of 1876 is the result of an unilateral declaration of Sultan and it is an octroyed constitution. 6 Some scholars allegue that the Constitution of 1876 is prepared uncharacteristically and it is a limited adaptation of the Constitution of France of 1875 and Constitution of Belgium of To be more precise, during the Ottoman constitutional developments 2 Ece Göztepe Aykut Çelebi, Demokratik Anayasa, Görüşler ve Öneriler (Democratic Constitution, Remarks and Recommendations), Metis Yayınları, Istanbul, 2012, p Jean Gicquel Jean-Eric Gicquel, Droit Constitutionnel et Institutions Politiques, 24th Edition, Montchrestien, Paris, 2010, p. 182; Bernard Chantebout, Droit Constitutionnel, 27th Edition, Sirey, Paris, 2010, p ; Tarık Zafer Tunaya, Siyasal Kurumlar ve Anayasa Hukuku (Political Institutions and Constitutional Law), 4th Edition, Fakülteler Matbaası, Istanbul, 1980, p ; Erdoğan Teziç, Anayasa Hukuku (Constitutional Law), 14th Edition, Beta Yayıncılık, Istanbul, 2012, p.10; Süheyl Batum, 99 Soruda Neden ve Nasıl Çağdaş Bir Anayasa (Why and How To Make a Constitution on 99 Questions), On İki Levha Yayıncılık, Istanbul, 2009, p Ergun Özbudun, Chapter 2: Constitutional Law, in Tuğrul Ansay Don Wallace Jr. (Eds.), Introduction to Turkish Law, 6th Edition, Kluwer Law International, Alphen aan den Rijn., Netherlands, p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p An octroyed constitution resultant an authoritarian method of constitution-making which is decided unilaterally by the possessor(s) of power. See; Gicquel Gicquel, ibid., p. 189; Teziç, ibid., p Mümtaz Soysal, Anayasaya Giriş (Introduction to the Constitution), 2th Edition, Ankara Üniversitesi Siyasal Bilgiler Fakültesi Yayınları No: 271, Ankara, 1969, p. 59; Tanör, ibid. (Ottoman-Turkish Const. Dev.), p

3 period, the constitutions following the French Revolution principles were the main sources of inspiration for Ottoman intelligentsia. 8 In respect of the rights and the liberties, the Constitution of 1876 defines Ottoman Nationality as all subjects of the empire are called Ottomans, without distiction whatever faith they profess 9 (Art. 8) and provides that all Ottomans are equal before the law (Art 17) and Turkish language recognised as the official language of the state (Art. 18). In addition, the Constitution guaranteed the fundamental rights such as the security of life (Art. 8), religious liberties(art. 11), prohibition of torture (Art. 26), right to petition (Art. 14), right to education (Art. 15) and so on. On the other hand, the Constitution put a new face on the form of government and created a legislative body called General Assembly (Meclis-i Umumi) 10 partially elected by people. Nevertheless, Art. 7 of the Constitution of 1876 was providing the sovereign rights of the Sultan, he was keeping the plenary authority and also he was entitled to dissolve the General Assembly. In this context, the form of government of the Ottoman Constitution of 1876 is discussed by scholars from the point of constitutional monarchy. Some scholars assert that the Constitution of 1876 establishes a semi-constitutional monarchy. 11 As the authority of the Sultan is only partially limited and the fundamental rights are restrictedly protected, the Constitution of 1876 is merely a constitutional charter (charte constitutionnelle). 12 Also, some scholars evaluate that especially after 1909 amendments, the Constitution of 1876 sets forth a limited monarchy. 13 As a matter of fact, the Constitution of 1876 did not to be long-lasting and Sultan Abdulhamid II. dissolved the Chamber of Deputies in 1878 and the absolute rule is reverted. Being proceeded the influence of occidentalisation in this period of shutoff the constitution, the Sultan is forced to revive the Constitution in This period is called Second Constitutionalist Period (İkinci Meşrutiyet). Later in 1909, the Constitution is amended and the powers of legislative body are increased and those of the Sultan are more restricted. Notwithstanding, this period did not last long and with the defeat of the Ottoman Empire in World War I. a new governmental structure is constituted by the nationalist resistance forces in Anatolia Mehmet Semih Gemalmaz, Devlet, Birey ve Özgürlük (State, Individual and Liberty), Legal Yayıncılık, İstanbul, 2010, p For English translation of the Ottoman Constitution of 1876 See; 10 Generel Assembly was composed of two chambers; the Senate (Heyet-i Ayan) which the members were assigned for lifelong by Sultan and the Chamber of Deputies (Heyet-i Mebusan) which the deputies were elected by the people through indirect elections and a system of limited suffrage. See; Tanör, ibid. (Ottoman-Turkish Const. Dev.), p ; Özbudun, ibid., p Tanör, ibid., p Münci Kapani, Kamu Hürriyetleri (Public Liberties), 7th Edition, Yetkin Yayınları, Ankara, 1993, p Kemal Gözler, Türk Anayasa Hukuku Dersleri (Turkish Constitutional Law Courses), 9th Edition, Ekin, 2010, p Özbudun, ibid. (Const. Law), p

4 As a general consideration, all these constitutional developments during the period between the years of may have been evaluated as an important step for the constitution-making processes after Also, especially the Ottoman Constitution of 1876 may be describe as a pioneer and Turkish constitutional period constitutions bear the stamp of the Constitution of 1876 such as the official language provision, citizenship definition and so on. B. Developments During Turkish Constitutional Period ( ) During the period of the occupation of the Allied forces, a new governmental structure is constituted by the nationalist resistance forces in Anatolia as mentioned above. The National Liberation era is full of interesting constitutional improvements. During National Liberation era, in 1920 Mustafa Kemal called for the election of a new assembly authorized with extraordinary powers differently from the Ottoman Parliament. This assembly is called Turkish Grand National Assembly holding both legislative and executive power and it was a constituent and revolutionary assembly. 15 Thus, a new government have been founded in Ankara apart from the Istanbul/Ottoman government. The principles that Ankara government is based on, was needing a clarification, thereby, the Constitution of 1921 (Teşkilat-ı Esasiye Kanunu) is entered into force. However, within that period the Ottoman Constitution of 1876 was not been abrogated; as from the entering into force of the Constitution of 1921 a dual constitutional period has been appeared. 16 However, the most important and revolutionary innovation brought by the new constitution is the principle of national sovereignity (Art. 1) which means that the leading role of the Constitution of 1921 is to found the new Turkish state. 17 In this context, the Constitution of 1921 has a sui generis characteristic in the history of constitutional movements both in Turkey and in the world. 18 Concerning the form of government preference of the constitution, Turkish Grand National Assembly was holding both legislative and executive power and this is an example of the conventional regime - assembly government according to the unity of powers of the classical constitutional law theory. 19 However, the conventional regime was an interim regime arising from the extraordinary circumstances of the war of independance era. 20 Thus, in order to terminate the dual contitutional period, a new constitution is drafted by the Turkish Grand National Assembly in Cem Eroğul, Anatüzeye Giriş (Introduction to Constitutional Law), 12th Edition, Ankara, 2012, p ; Özbudun, ibid. (Const. Law), p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p Ergun Özbudun, Türk Anayasa Hukuku (Turkish Constitutional Law), 11th Edition, Yetkin Yayınları, Ankara, 2010, p. 28; Soysal, ibid., p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p Soysal, ibid., p.160; Tanör, ibid.(ottoman-turkish Const. Dev.), p ; Özbudun, ibid. (Const. Law), p.21; Gözler, ibid., p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p

5 Before explaining the characteristics of the Constitution of 1924, it is necessary to briefly indicate that the period which began in 1922 is called Kemalist Revolution / Turkish Revolution / Atatürk Revolution / Kemalist Reforms period. The Turkish Revolution created a brand new establishment, constitution and legal system. 21 These radical and large-scale reforms are about the economics, legal system, cultural life and political life. 22 The revolution is based on a social and political project and its main objective is the modernisation. 23 During this revolution era, the Constitution of 1921 was considerably insufficient and it was necessary to make a new constitution after the national liberation period. The Constitution of 1924 has been entered into force on April 23, The Constitution of 1924 was a rigid constitution 24 and for the first time in Ottoman-Turkish constitutional law history, the Constitution of 1924 includes an entrenchment clause (Art. 102). Art. 1 of the Constitution which provides that the form of the state is a republic was irrevocable. Concerning the fundamental rights and public liberties; the Constitution of 1921 was not ensured the fundamental rights. However, the Constitution of 1924 includes entire first generation human rights and the Constitution is inspired from the 1789 Declaration of the Rights of Man and Citizen. 25 The official religion of the state was determined as Islam in the Constitution of 1924; however this provision has been abrogated in 1928 and in 1937 the principle of laicism has been accepted (Art. 2). The Constitution of 1924 also includes important provisions concerning the citizenship definition. The name Turk, as a political term, shall be understood to include all citizens of the Turkish Republic, without distinction of, or reference to, race or religion. (Art. 88) 26 According to this definition, the citizenship is not defined in a religious or ethnic way; but it is described by geographic and political way and the determinant factor is the will of living together. 27 Concerning the form of government, discretely from the Constitution of 1921, the elements of parliamentary regime were increasingly accompanying to the 21 Bülent Tanör, Kurtuluş Kuruluş (Liberation Constitution), 5th Edition, Cumhuriyet Kitapları, Istanbul, 2003, p See; Bernard Lewis, The Emergence of Modern Turkey, 2nd Edition, Oxford University Press, 1968, p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p A rigid constitution is one which cannot be amended as ordinary laws and requires a special, technical and more difficult procedure for its amendment. See; Pierre Pactet Ferdinand Mélin- Soucramanien, Droit Constitutionnel, 29th Edition, Sirey, Paris, 2010, p. 68; Chantebout, ibid., p Kapani, ibid., p For English translation of the Constitution of 1924 See; Edward Mead Earle, The New Constitution of Turkey, Political Science Quarterly, Vol. 40/I., 1925, p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p

6 elements of the conventional regime assembly government and it was a mixed regime. 28 This constitutional period can be evaluated as a strengthening period for the parliamentary regime in the sense of the classical constitutional law theory. 29 The Constitution of 1924 was into effect during 36 years and amended 7 times including the amendment concerning the official religion (1928 and 1937) and the right to vote and to be elected of women (1934). On the other hand, there has been a transition to a multi-party system on 1946 and the Constitution became unsufficient in terms of the new political situation. The government took authoritarian measures while increasing the tension between the democrats and the republicans. As a result, Turkish armed forces seized control of Menderes government and made the coup d état on 27 May The Constitution of is a result of the coup d état and in this sense the Constitution is drafted as an outcome of the primary constituant power. 32 The Constitution of 1961 is drafted by a commission (Istanbul Commission) composed by the law professors from University of Istanbul. However the draft is modified and accepted by a constituent assembly 33 and it was the first experience of a constitution-making procedure by a constituent assembly in Turkey. However, the constituent assembly was composed of two chambers. First, The National Unity Committee (Milli Birlik Komitesi) was composed of the thirty-eight military officer leading the coup d état. Second, The House of Representatives (Temsilciler Meclisi) some of them were elected by the people and others were chosen by diverse institutions such as the universities, bar associations, labour unions, political parties etc. After being prepared and adopted by the constituent assembly, the Constitution of 1961 entered into force by ratifying by referendum on 9 July The Constitution of 1961 symbolizes a reaction to the serious problems encountered during the functioning of the Constitution of 1924 and its main purpose was to improve the constitutional structure. 35 The Constitution of 1924 represented a 28 Özbudun, ibid. (Turkish Const. Law), p ; Gözler, ibid., p Tanör, ibid. (Ottoman-Turkish Const. Dev.), p Özbudun, ibid. (Const. Law), p For the English translation of the Constitution of 1961 See; Sadık Balkan Ahmet E. Uysal Kemal H. Karpat (Translators), Constitution of the Turkish Republic, Ankara, Primary constituent power (le pouvoir constituant originaire) can be activated for making a new constitution following the creation of a new state, the end of a period of absolute use of power (i.e. after a revolution) or the abolition of a constitution. See; Chantebout, ibid., 28-30; Pactet Mélin- Soucramanien, ibid., p ; Teziç, ibid., p. 178; Özbudun, ibid. (Turkish Const. Law), p. 161; Batum, ibid., p A constituent assembly is a body composed just for the purpose of drafting or adopting a constitution. See; Chantebout, ibid., p. 30; Teziç, ibid., p. 181; Batum, ibid., p The referendum is discussed by many scholars for legal reasons and it is asserted that the popular vote of 1961 is an antidemocratic way of referendum so-called plebiscite. See; Aslı Topukcu, Kuramsal ve Hukuksal Açıdan Doğrudan Demokrasi (Legal and Theoretical Aspects of Direct Democracy), Istanbul University Social Sciences Institute Department of Public Law, Unpublished LL.M. Thesis, Istanbul, 2011, p Kapani, ibid., p. 117; Özbudun, ibid. (Const. Law), p. 23; Tanör, ibid. (Ottoman-Turkish Const. Dev.), p

7 mixed system between parliamentary government and conventional regime as mentioned above. However the Constitution of 1961 brought about further developments in the parliamentary system. 36 Furthermore, the Constitutional Court was first established by the Constitution of 1961 and the constitutional review have been accepted (Art ). The philosophy of the Constitution of 1961 is based on the protection of human rights (The preamble of the Constitution of 1961 and Art. 2). The Constitution was including a detailed bill of rights including both classical and social rights and they were efficiently protected. Also the Constitution of 1961 featured the individuals but not the state. In this sense, the Constitution have been critised in terms of the state power is not adequately protected. 37 In this context, the Constitution of 1961 as well as being a democratic and human rights based constitution; regrettably it is not embraced by every segment of society. Notwithstanding, the Constitution of 1961 provided a large area of freedom even though it is a result of a coup d état. 38 The Constitution of 1961 has been amended six times and the most important amendments took place in 1971 and 1973 because of the political system crisis. However, these amendments could not prevent to slide into political polarisation and violence. 39 After nineteen years of enforcement of the Constitution of 1961, this political instability caused a new coup d état on 12 September The reasons of the coup d état announced as follows by the National Security Council (Milli Güvenlik Konseyi) : to protect the territorial integrity of the state, to ensure the national solidarity, to prevent a potential civil war and to reestablish the state authority. 40 It is remarkable that the coup d état is based on national security doctrine and in this context it differs from the coup d état of Also, this general principal of the coup d état of 1980 has affected the authoritarian philosophy of the Constitution of The Constitution of has been drafted by a constituent assembly composed of the National Security Council members and Consultative Assembly members who are directly choosen by the Council. The representative power of the constituent assembly of the Constitution of 1982 was limited in opposition to the constituent assembly of the Constitution of The Constitution entered into force by submitting to referendum on 7 November Due to the political environment (political parties was dissoluted, 36 Soysal, ibid., p Şule Özsoy, 1982 Anayasası nın Yapım Süreci (Constitution Making Process of the Constitution of 1982), On İki Levha Yayıncılık, Istanbul, 2010, p Bülent Tanör, İki Anayasa (The Two Constitutions: ), 4th Edition, On İki Levha Yayıncılık, Istanbul, 2012, p Serap Yazıcı, Türkiye de Askeri Müdahalelerin Anayasal Etkileri (The Constitutional Effects of Military Interventions in Turkey), Yetkin Yayınları, Ankara, 1997, p National Security Council, Declaration No. 1, 12 September 1980, O.J. No Tanör, ibid. (Two Constitutions), p For English translation of the Constitution of 1982 See; 7

8 referendum propaganda was restricted, secrety of the vote was not respected etc.) the referendum process transformed into a plebiscite. 43 However, because of the political repression the Constitution is accepted by %91 majority. The characteristics of the Constitution of 1982 can be describe as etatist, nationalist, authoritarian and solidarist. 44 The Constitution of 1982 has been critised especially from the point of its authoritarian tendency, strengthening the executive branch and ineffectiveness of the protection of fundamental rights. The Constitution of 1982 has been amended sixteen times and almost half of the Constitution is amended. The general framework of these amendments was the democratisation and liberalisation of the Turkish Constitutional System. Especially many comprehensive amendments have been made in 2001 and in 2004 by the encouragement of European Union membership process. However, they failed to satisfy of the needs and expectations of the society and Turkey s way of searching for a new and unmilitary constitution continued regularly. 45 II. The New Constitution Making Process in Turkey After The 2011 Election During the electioneering before 2011 parliamentary election, all of the major political parties (Justice and Development Party (AKP), Republican People s Party (CHP), Nationalist Movement Party (MHP) and Peace and Democracy Party (BDP)) reached a consensus about the need for a participatory constitution making process, however they did not propose a procedural model. 46 After the election, AKP became the ruling party with a clear majority and the government called all the opposition parties to make a new constitution. As a beginning, an expert panel with the participation of constitutional law professors is arranged on 19 September 2012 and the future of the constitution making process is discussed both from procedural and material points. 47 However, it was only a consultative meeting. The majority of the constitutional law experts argued that the parliament is authorised to make a new constitution, nevertheless the minority view allegued that the constitution making process should be proceed with a constituent 43 Tanör, ibid., p ; Batum, ibid., p ; Topukcu, ibid., p Bülent Tanör Necmi Yüzbaşıoğlu, 1982 Anayasası na Göre Türk Anayasa Hukuku (Turkish Constitutional Law According to the Constitution of 1982), 12th Edition, Beta, Istanbul, 2012, p Özbudun, ibid. (Const. Law), p. 30; Levent Gönenç, Towards a Participatory Constitution Making Process İn Turkey, Policy Note of Economic Policy Research Foundation of Turkey, January 2011, 46 For constitution making proposals of the political parties See; Levent Gönenç, Siyasal Partilerin Seçim Bildirgelerinde Anayasa Konusu: Yol Haritası Değil Niyet Beyanı (Constitution Making Issue in the Election Bulletins of the Political Parties: Not a Roadmap but Declaration of Intention ), Policy Note of Economic Policy Research Foundation of Turkey, May 2011, 47 For the meeting record of the expert panel See; 8

9 assembly. As a second step, the Constitutional Reconciliation Commission (CRC) is established in the Turkish Grand National Assembly (TGNA). A. The Procedure of Constitution Making: Establishment of Constitutional Reconciliation Commission and Its Legal Ground The CRC is an ad hoc commission formed by reaching a compromise of all political parties in the TGNA and it is composed of twelve members of the four main political parties (AKP, CHP, MHP and BDP) respresented in the parliament. The first meeting of CRC held on 19 October 2011 and the working principles is determined in the form of fifteen articles. 48 According to the working principles, the function of the CRC is defined to prepare the draft text of the Constitution and to conduct the process (Art. 2). The Commission has to take all the decisions by unanimous vote (Art. 6) and if the draft text is accepted in the plenary session or if the members of a political party resign from the Commission, the CRC will be expired (Art. 15). The establishment of the CRC has been critised from the point of that either in the Constitution of 1982 or in the parliamentary bylaws do not refer to this kind of commission for a constitution making process and the CRC does not have any legal status or authority. 49 Another critical aproach to the CRC is that the new constitution 48 For the Working Principles of The CRC See; 49 As a matter of fact, the Art. 175 of the Constitution of 1982 regulates the constitutional amendment procedure as follows: I. Amendment of the Constitution, Participation in Elections and Referenda ARTICLE 175. The constitutional amendment shall be proposed in writing by at least one-third of the total number of members of the Turkish Grand National Assembly. Proposals to amend the Constitution shall be debated twice in the Plenary Session. The adoption of a proposal for an amendment shall require a three-fifths majority of the total number of members of the Assembly by a secret ballot. The consideration and adopting of proposals for the amendment of the Constitution shall be subject to the provisions governing the consideration and adoption of legislation, with the exception of the conditions set forth in this article. The President of the Republic may refer the laws related to the Constitutional amendments for further consideration. If the Assembly adopts the draft law referred by the President by a two-thirds majority, the President may submit the law to referendum. If a law is adopted by a three-fifths or less than two-thirds majority of the total number of votes of the Assembly and is not referred by the President for further consideration, it shall be published in the Official Gazette and shall be submitted to referendum. A law on the Constitutional amendment adopted by a two-thirds majority of the total number of members of the Turkish Grand National Assembly directly or if referred by the President for further consideration, or its articles as considered necessary may be submitted to a referendum by the President. Laws or related articles of the Constitutional amendment not submitted to referendum shall be published in the Official Gazette. Laws related to Constitutional amendment which are submitted to referendum, shall require the approval of more than half of the valid votes cast. The Turkish Grand National Assembly, in adopting the laws related to the Constitutional amendment, shall also decide on which provisions shall be submitted to referendum together and which shall be submitted individually. 9

10 should definetely be drafted by a constituent assembly and the CRC can not be qualified as a constituent assembly. In this context, the authority of the TGNA to make a new constitution is also critised because of Turkish electoral system. According to the Art. 33 of the Law on the Election of Deputies, a national electoral threshold is provided and the political parties that obtain less than %10 of the total valid votes cast nationally cannot be assigned. 50 Based on the Art. 33, the parliament does not represent all the social groups in Turkey and has not to be authorised to make a new constitution. 51 Notwithstanding the critisim, the CRC worked from 19 October 2011 to 25 December 2013, but never published the draft articles that the Commission accepted (The CRC compromised on sixty articles during the drafting period of twenty-five months) and the transparency of the CRC has been questioned. In December 2013, AKP members of the CRC did not attend three meetings without excuse and according to the Art. 15 of the Working Principles of the Commission, the CRC is dissolved. The Commission cannot compromised about the principal of laicism and the freedom of religion, the entrechment clause, the definition of the citizenship, education in the mother tongue and so on. B. Principal Constitutional Matters Discussed During Constitution- Making Process 1. Entrenchment Clause of the Constitution Many constitutions includes an entrenchment clause in order to determine the limitations of the constituent power and amendment procedures. The purpose of the entrenchment clause is to guarantee the basic principles, values and the constituent philosophy of the constitution. 52 Abolishment of the entrenchment clause in order to negotiate the non-amendable articles of the constitution is also discussed during the new constitution-making process in Turkey; however it is evaluated as a fraus legi facta by some scholars. 53 In the Turkish Constitutional Court (TCC) decisions, the TCC resolved that the prohibition to amend the first three articles of the Turkish Every measure including fines shall be taken to secure participation in referenda, general, byelections and local elections. 50 The electoral threshold in Turkey is also critised by the European Court of Human Rights (ECtHR), See; Case of Yumak and Sadak v. Turkey, Grand Chamber Judgment, 10226/03, 8 July 2008, par Ferhat Kentel Levent Köker Özge Genç, Making of a New Constitution in Turkey Monitoring Report, October 2011 January 2012, Tesev Democratization Program, p. 9; Sevtap Yokuş, Türkiye de Çatışma Çözümünde Anayasal Arayışlar (Constitutional Seekings in Conflict Resolution in Turkey), Seçkin Ankara, 2013, p Chantebout, ibid., p ; Gicquel-Gicquel, ibid., p. 194; Batum, ibid., p Batum, ibid., p

11 Constitution of 1982 infers also the prohibition to amend the entrenchment clause itself. 54 In Turkish Constitutions, the entrenchment clause is first provided in the Constitution of 1924 and only the article which provide the form of the state is a republic was non-amendable. Later, the Constitution of 1961 also included the same provision. However, the Constitution of 1982 extended the limitations of derived constituent power and the first three articles of the Constitution is non-amendable. 55 In the first articles of the Constitution of 1982, it is provided the general principles of the state philosophy of the Turkish Republic and the Turkish constitutional conventions are based on the principle of laicism, rule of law, welfare state, democracy, respect to human rights and so on. However, it is provided also some other principles as the Nationalism of Atatürk, public peace and national solidarity and justice, which defies easy explanation according to the general principles of constitutional law. As mentioned in the Art. 2 of the Constitution of 1982, one of the characteristics of the republic is loyalty to the nationalism of Atatürk. According to the TCC, nationalism of Atatürk is based on the independance 56 and the will of living together. 57 This principle is expressed in the Preamble of the Constitution of 1982 as all Turkish citizens are united in national honour and pride, national joy and grief, their rights and duties towards the national entity, blessings, and burdens, and in every manifestation of national life. Nationalism of Atatürk is obviously not tolerant of racism, chauvinism and militancy. 58 However all these concepts are critised in point of being ambiguous and undescribed by law TCC Decision, 1976/ /4, 27 January 1977; TCC Decision, 2008/ /116, 5 June I. Form of the State ARTICLE 1. The Turkish state is a Republic. II. Characteristics of the Republic ARTICLE 2. The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble. III. Integrity of the State, Official Language, Flag, National Anthem, and Capital ARTICLE 3. The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the Independence March. Its capital is Ankara. IV. Irrevocable Provisions ARTICLE 4. The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed. 56 TCC Decision, 1989/1 1989/12, 7 March TCC Decision, 1979/1 1980/1, 8 May 1980; TCC Decision, 1993/3 1994/2, 16 June Özbudun, ibid. (Turkish Const. Law), p Soysal, ibid., p. 115; Tanör-Yüzbaşıoğlu, ibid., p

12 In conclusion, the discussions based on entrenchment clause are mostly related to the problem of the protection of minority rights in the new constitution because of the official language rule, unitary state and exclusion of autonomy principles are provided in the first three articles of the constitution in force. Also, the principle of laicism is discussed in point of the abolishment of the entrenchment clause. 2. The Principle of Laicism and The Freedom of Religion The principle of laicism is one of the basic characteristics of the Turkish Republic as mentioned in the Art. 2 of the Constitution of 1982 and it is a constitutional principle since The laicism in Turkey follows the French model and the state has a dominant role over religions, the religious freedoms are lived through the State. 60 The principle is defined since the Constitution of 1961 period by the TCC. The TCC emphasises that the meaning of laicism is firstly based on the separation of the state and religious institutions. 61 In addition, the TCC puts particular emphasis on the special dimension of laicism in Turkey. In this sense, the Court notes that Ottoman-Turkish constitutionalism indicates also a transition from theocracy to laicism. Laicism is the essence of the philosophy of the Turkish Republic s establishment which is closely linked with the concept of modernisation. 62 The principle of laicism is related to the principle of equity as well. The religious discrimination is prohibited as mentioned on the Art. 10/I of the Constitution of In this context, the principle of laicism appears as the guarantee of the freedom of religion of the different religious believers and also for nonbelievers. The main problems arised from the constitutional provisions regarding the freedom of religion concerns religious communities such as Alevis, Assyrians and Yezidis which are not recognised by the Lausanne Treaty. 63 In this context, the compulsory religion lessons and the provision which establishes the Presidency of Religious Affairs (Diyanet İşleri Başkanlığı) should be explain. 60 Olgun Akbulut Zeynep Oya Usal, Parental Religious Rights v. Compulsory Religious Education in Turkey, International Journal on Minority and Group Rights, Vol.15, 2008, Martinus Nijhoff Publishers, p TCC Decision, 1986/ /26, 4 November The ECtHR also assests the significance of the laicism principle in Turkey in parallel with the TCC. See; Case of Refah Partisi (The Welfare Party) and Others v. Turkey, Grand Chamber Judgment, 41340/ / /98 and 41344/98, 13 February 2003, par , ; Case of Leyla Şahin v. Turkey, Judgment, 44774/98, 10 November 2005, par According to Turkish Law only the non-muslim minorities cited in Lausanne Treaty are recognised as minorities (Art of the Lausanne Treaty). See; Gülnihal Bozkurt, Türk Hukuk Tarihinde Azınlıklar (Minorities in Turkish History of Law), Journal of Ankara University Faculty of Law, Vol. 43, No: 1-4, 1993, p. 57; Baskın Oran, Türkiye de Azınlıklar: Kavramlar, Lozan, İç Mevzuat, İçtihat, Uygulama (Minorities in Turkey: Concepts, Lausanne, Domestic Legislation, Jurisprudence, Practice), Tesev Yayınları, Istanbul, 2004,

13 The Constitution of 1982 provides that the religious culture and moral lessons are compulsory for primary and secondary school students (Art. 24). 64 These courses are critised from the point of indoctrination of the Sunni Islam. 65 However, in the jurisprudence of Turkish Conseil d Etat, the compulsory religious culture and moral lessons are assessed non-compatible with the principle of laicism and the European Convention on Human Rights (ECHR), whether the curricula does not include an objective and equal approach to all religions and beliefs. 66 On the other hand, the compulsory religious lessons case brought before the European Court of Human Rights (ECtHR) and the Court decided that the Art. 2 of the Additional Protocol No. 2 (right to education) is violated. 67 Concerning the Presidency of Religious Affairs (PRA) 68, this institution is critised from the point of not being neutral and to promote the Sunni Islamic belief. 69 Also, the principle of laicism is based on the separation of state and religion; however the PRA is a governmental institution attached to the prime ministry and it is not compatible with the principle of laicism. The PRA is financially supported by the state and for instance, the budget of 2014 planned for the PRA is much more than a lot of ministry s budget. 70 The PRA pretends to be unaware especially of the Alevi population and for instance, despite the Alevi sanctuary is not the mosque but the cemevi (djemevis), the mosques are built in Alevi villages. It is evaluated as a 64 VI. Freedom of religion and conscience ARTICLE 24- Everyone has the freedom of conscience, religious belief and conviction. Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14. No one shall be compelled to worship, or to participate in religious rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions. Religious and moral education and instruction shall be conducted under state supervision and control. Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual s own desire, and in the case of minors, to the request of their legal representatives. No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever, for the purpose of personal or political interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets. 65 Akbulut Usal, ibid., p See; Turkish Conseil d Etat 8th Chamber Decision, 2006/ /7481, 28 December 2007; Turkish Conseil d Etat 8th Chamber Decision, 2007/ /1461, 29 February 2008; Turkish Conseil d Etat 8th Chamber Decision, 2007/ /3238, 15 May Hasan and Eylem Zengin v. Turkey, Judgment, 1448/04, 9 October I. Presidency of Religious Affairs ARTICLE 136- The Presidency of Religious Affairs, which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity. 69 Tanör- Yüzbaşıoğlu, ibid., p ; Ergun Özbudun, Laiklik ve Din Hürriyeti (Laicism and Freedom of Religion) in Demokratik Anayasa, Görüşler ve Öneriler (Democratic Constitution, Remarks and Recommendations), Ece Göztepe Aykut Çelebi (Eds.), Metis Yayınları, Istanbul, 2012, p See; The TGNA Planning and Budget Commission Presentation, p

14 political pressure to indoctrinate the Sunni belief to the Alevi population by the state. 71 Apart from these explanations, there is another problematic issues in Turkey concerning the principle of laicism such as the headscarf issue; however these problems are not arised from the constitutional provisions. For this reason, these problems will not mentioned as part of this study. 3. The Definition of Citizenship The social structure of Turkey is formed of too many different groups with their traditions, lifestyles and beliefs. The notion Turk is used to describe generally muslim people with an understanding originated from Ottoman period. On the other hand, for instance, as Kurdish people are generally muslim, their situation are not discussed during constitution-making period in 1924 while defining the notion of citizenship in the Constitution. 72 However, the base of the discussions including the citizenship definition in Turkey today, is principally the demands for right of Kurdish people. The Constitution of 1982 defines the citizenship 73 based on the will of living together and does not refer to the race or religion as mentioned previously. It is accepted just as a legal bond. According to the TCC decisions, the citizenship definition creates an unifying foundation which excludes any privilege to an ethnic group. 74 However, this provision has been critised from the point of underline the ethnic origin and promote only the Turkish identity. 75 According to the reformulation of the citizenship definition in the new constitution-making process there is some proposals. Most of the proposals contain the notion of constitutional citizenship which means to remove of all ethnic, religious, sexual, linguistic and culturel tendencies from the concept of citizenship and also to recognise and to protect the differences. In this context, citizens of the 71 Oran, ibid., p. 44; Bülent Tanör, İnanç ve Din Özgürlüğü (Freedom of Religion and Belief) in İnsan Hakları (Human Rights), Korkut Tankuter (Ed.), Yapı Kredi Yayınları, Istanbul, 2000, p Oktay Uygun, Ulusal Kimlik ve Siyasal Sistem Tartışmaları (Discussions on the National Identity and Political System) in Kamu Hukuku İncelemeleri İnsan Hakları, Demokrasi, Hukuk Devleti, Egemenlilk (Public Law Analysis Human Rights, Democracy, Rule of Law, Sovereignty), On İki Levha Yayıncılık, Istanbul, 2011, p I. Turkish citizenship ARTICLE 66- Everyone bound to the Turkish State through the bond of citizenship is a Turk. The child of a Turkish father or a Turkish mother is a Turk. (Sentence repealed on October 3, 2001; Act No. 4709) Citizenship can be acquired under the conditions stipulated by law, and shall be forfeited only in cases determined by law. No Turk shall be deprived of citizenship, unless he/she commits an act incompatible with loyalty to the motherland. Recourse to the courts in appeal against the decisions and proceedings related to the deprivation of citizenship shall not be denied. 74 TCC Decision, 1993/1 1993/2, 23 November Oran, ibid., p

15 Republic of Turkey and citizens from/of Turkey formulations are suggested by some non-governmental organisations and some political parties. Also, it is suggested that the Constitution may not contain the citizenship definition. 76 As a conclusion, the discussions about the citizenship definition is essentially based on the protection of minority rights in Turkey. The respect of religious rights of different religious groups, recognise the linguistic rights, reformulate the citizenship definition have to be the main purpose of a new constitution while these issues are the achilles heel of the current constitutional system. 4. Possibility of Switch to the Presidential System After 2011 general election, the seekings for a new form of government by AKP government was at the top of the new constitution-making process agenda. Before AKP government and the prime minister Recep Tayyip Erdoğan, a possible switch to the presidential system has been discussed in nineties by Turgut Özal and Süleyman Demirel the former presidents of the Republic of Turkey. 77 The Constitution of 1982 extended the authority of the President of the Republic 78 comparing with the Constitution of Some scholars interpreted this 76 Ferhat Kentel Levent Köker Mehmet Uçum Özge Genç, Making of a New Constitution in Turkey Monitoring Report, February 2012 June 2012, Tesev Democratization Program, p See; Bertil Emrah Oder, Türkiye de Başkanlık ve Yarı-Başkanlık Rejimi Tartışmaları: Yılları Arasında Basına Yansıyan Öneri ve Tepkilerden Kesitler (Debates on the Presidential and Semi-Presidential Systems in Turkey: Proposals and Reactions Between ) in Başkanlık Sistemi (The Presidential System), Teoman Ergül (Ed.), TBB Yayınları, Ankara, 2005, p D. Duties and powers ARTICLE 104- The President of the Republic is the head of the State. In this capacity, he/she shall represent the Republic of Turkey and the unity of the Turkish Nation; he/she shall ensure the implementation of the Constitution, and the regular and harmonious functioning of the organs of the State. To this end, the duties he/she shall perform, and the powers he/she shall exercise, in accordance with the conditions stipulated in the relevant articles of the Constitution are as follows: a) Those relating to legislation: To deliver, if he/she deems it necessary, the opening speech of the Grand National Assembly of Turkey on the first day of the legislative year, To summon the Grand National Assembly of Turkey, when necessary, To promulgate laws, To send laws back to the Grand National Assembly of Turkey to be reconsidered, To submit to referendum, if he/she deems it necessary, laws regarding amendment to the Constitution, To appeal to the Constitutional Court for the annulment part of whole or certain provisions of laws, decrees having the force of law and the Rules of Procedure of the Grand National Assembly of Turkey on the grounds that they are unconstitutional in form or in content, To decide to renew elections for the Grand National Assembly of Turkey. b) Those relating the executive: To appoint the Prime Minister and to accept his/her resignation, To appoint and dismiss ministers on the proposal of the Prime Minister, To preside over the Council of Ministers or to call the Council of Ministers to meet under his/her chairpersonship whenever he/she deems it necessary, To accredit representatives of the Turkish State to foreign states and to receive the representatives of foreign states appointed to the Republic of Turkey, To ratify and promulgate international treaties, To represent the Office of Commander-in-Chief of the Turkish Armed Forces on behalf of the Grand National Assembly of Turkey, To decide on the use of the Turkish Armed Forces, To appoint the Chief 15

16 rearrangement as to give place to the rationalised parliamentarism mechanisms in the Constitution, in order to resolve the problems arising from the parliamentary system during the period of the Constitution of However, parliamentarism has been one of the most important and continuous feature of the Turkish constitutional system since During the election period of the president of republic in 2007 there has been a constitutional crisis. The tenth President of the Republic Ahmet Necdet Sezer s term of office expired in May 2007 and during the election process of the candidate Abdullah Gül, there has been a constitutional crisis in the parliament about the quorum. The main opposition party CHP applied to the TCC for the annulment of the ballot. The TCC decided that the quorum was not constitute 80 and at the same time AKP proposed a package of constitutional amendments including the election of the president of republic by referendum and not by the parliament. According to the constitutional provision, this package of constitutional amendments had to be brought into referendum. However, before the referendum, it is decided to go for an early general election. AKP became more powerful in the parliament after the early general election and even the CHP deputies did not attend the plenary session, AKP had the majority and elected Abdullah Gül as the president of the Republic on 28 August The referendum is conducted on 12 September 2007 and the package of constitutional amendments including the election of the president of the Republic byr the people is accepted by majority. As can be seen, the constitutional amendment process was a result of the current political situation. This constitutional amendment process is followed by a political and legal debate: Does Turkey need a new government system, in other words does Turkey need presidentialism? The constitutional law scholars assest that Turkey has a constitutional experience on parliamentary government since the Ottoman constitutional period and it is supposed to benefit from this experience. 81 Also the authorities of the president of the republic has to be symbolic as in the classical of the General Staff, To call the National Security Council to meet, To preside over the National Security Council, To proclaim martial law or state of emergency, and to issue decrees having the force of law, by the decisions of the Council of Ministers under his/her chairpersonship, To sign decrees, To remit or commute the sentences imposed on certain individuals, on grounds of chronic illness, disability or old age, To appoint the members and the chairperson of the State Supervisory Council, To instruct the State Supervisory Council to carry out inquiries, investigations and inspections, To appoint the members of the Council of Higher Education, To appoint president of universities. c) Those relating to the judiciary: To appoint the members of the Constitutional Court, one-fourth of the members of the Council of State, the Chief Public Prosecutor and the Deputy Chief Public Prosecutor of the High Court of Appeals, the members of the High Military Court of Appeals, the members of the High Military Administrative Court and the members of the High Council of Judges and Prosecutors. The President of the Republic shall also exercise powers of election and appointment, and perform the other duties conferred on him/her by the Constitution and laws. 79 Yusuf Şevki Hakyemez, Hükümet Sistemi Arayışları (Seeking For a New Government System), in Demokratik Anayasa, Görüşler ve Öneriler (Democratic Constitution, Remarks and Recommendations), Ece Göztepe Aykut Çelebi (Eds.), Metis Yayınları, Istanbul, 2012, p TCC Decision, 2007/ /54, 1 May Özbudun, ibid. (Turkish Cont. Law), p. 354; Hakyemez, ibid., p

17 parliamentary system. 82 On the other hand, the majority of the constitutional law scholars considered that with the constitutional amendment of 2007, regarding to the election of the president of the republic by people, the government system of Turkey did not become parallel with the French semi-presidential system. In this context, the 2007 constitutional amendments did not modify the authorities and the duties of the president of the republic. In Turkish Constitutional Law, it is precluded that the president of the republic implements an independant policy such in semi-presidential and presidential system. 83 The number of the political parties, party discipline practices and the characteristics of the political culture in Turkey is not suitable for a presidential system. 84 Also, presidential system is based on the reconciliation which is unordinary in Turkish political life and this characteristic pose a risk of the personalisation of power. 85 In this context, with regard to the authoritarian practices of the presidential system in Latin America, Turkish example may strongly risk to convert into a dictatorship. 86 Concluding Remarks From all above mentioned explanations there could be made few remarks regarding findings and proposed future prospects. First of all, the Constitution of 1982 has been amended sixteen times and almost half of the Constitution is amended. Despite the fact that, the Constitution of 1982 is a result of the coup d état and its origine rely on the autharitarian military regime, current situation of the Constitution is completely different. Indeed, it is necessary to think about to have need for a new constitution in Turkey. In this context, there is some special headlines about the constitution-making process which have been mentioned above. These are; the debate about the abolishment of the entrenchment clause, the principle of laicism and the freedom of religion, the citizenship definition and the debate on the possible switch to the presidential system. From our standpoint, the most important and urgent constitutional issue in Turkey is the protection of minority rights and all the listed issues are basically related to this main question. In this sense, the new constitution of Turkey should be pluralistic, respectful and protective to culturel, religious and ethnical diversities and should be unifying at the same time with the universal values such as democracy, human rights and the rule of law. 82 Özbudun, ibid. (Turkish Const. Law), p Teziç, ibid., p Hakyemez, ibid., p Serap Yazıcı, Başkanlık Sistemleri: Türkiye İçin Bir Değerlendirme (Presidential Systems: An Assessment for Turkey), in Başkanlık Sistemi (The Presidential System), Teoman Ergül (Ed.), TBB Yayınları, Ankara, 2005, p Ersin Kalaycıoğlu, Başkanlık Sistemi: Türkiye nin Diktatörlük Tehdidiyle Sınavı (Presidential System: Turkey s Challenge to the Dictatorship Danger) in Başkanlık Sistemi (The Presidential System), Teoman Ergül (Ed.), TBB Yayınları, Ankara, 2005, p

18 It must be noted that, in Turkey there is a great expectation from the constitution making process and the constitution has been seen as a solution for all legal and social problems; however the bottom line is to internalise the constitutional values and put them into practice as it should be. Concerning the constitution making procedure, in our opinion, a constituent assembly will be the most democratic way to make a new constitution. However, the freedom of expression 87, the freedom of peaceful assembly 88 atmosphere and the participative mechanisms are not sufficiently conducted. When examining the constitutional relations between Mediterranean basin states and Turkey very briefly, it is needed to set forth the effects of the Arab spring and the future role of Turkey in the middle east region. Turkey being realised Kemalist Revolution and being adopted the principle of laicism differs from the other states of the region. However, Turkey did not export and did not even try to introduce the revolution ideas and reforms to the Islamic world, on the contrary, Turkey headed towards European civilisation. 89 Today Turkey s role to be a model country in middle east region is discussed. However, the motivation of to be a model country and a regional power, unfortunately, is not seem to be based on the promotion of human rights. Besides, the relations between European Union and Turkey has been let-up in recent years. Neverthless, if the term model country means the civilising and developmental character of Turkey 90, it may be considered as a reference to the Turkish Revolution which individuate the establishment of Turkish state. Thus, concerning this political and constitutional transformation/revolution, the Turkish model may set a good example for the arab-muslim world. 87 According to the Committee to Protect Journalists Report in 2013, Turkey is imprisoning more journalists than any other country. See; 88 For instance, during the International Workers Day celebrations since 2007 and during the Gezi Park protests in June 2013 the protection of the freedom of peaceful assembly has been violated systematically by Turkish government. The violations during the International Worker s Day on 2007 has been brought to the ECtHR and the Court decided that the Turkish Government violated the Art. 11 of the ECHR. See; Case of DISK and KESK v. Turkey, Judgment, 38676/08, 27 November Tanör, ibid. (Kurtuluş-Kuruluş), p See; Jean Marcou, Les Multiples Visages du Modèle Turc, Revue Futuribles, No: 379, Novembre 2011, p. 5-21; İbrahim Ö. Kaboğlu, Akdenizde Anayasacılık Hareketleri Karşısında Türkiye (Turkey in the Face of Constitutionalism Movements in the Mediterranean), Journal of Constitutional Law, Vol: 1, Issue:2, Legal Yayıncılık, 2012, p