| Constitution of the Republic of Türkiye | |
|---|---|
 | |
| Overview | |
| Original title | Türkiye Cumhuriyeti Anayasası |
| Jurisdiction | Republic of Türkiye |
| Created | 18 October 1982 |
| Presented | 20 October 1982 |
| Ratified | 7 November 1982 |
| Date effective | 9 November 1982 |
| System | Unitarypresidential republic |
| Government structure | |
| Branches | Three (executive, legislative, judicial) |
| Head of state | President |
| Chambers | One (Grand National Assembly) |
| Executive | Presidential Cabinet |
| Judiciary | Judicial system of Turkey 4 supreme courts |
| Federalism | Unitary |
| Electoral college | No |
| Entrenchments | First three articles regarding the form and characteristics of the state |
| History | |
| First legislature | 6 November 1983 |
| First executive | 13 December 1983 |
| Amendments | 19 |
| Last amended | 16 April 2017 |
| Commissioned by | National Security Council |
| Author(s) | Advisory Parliament of Turkey |
| Signatories | 83% of the electorate |
| Supersedes | Constitution of 1961 |
| Full text | |
 Constitution of the Republic of Turkey atWikisource | |
| Türkiye Cumhuriyeti Anayasası at TurkishWikisource | |
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 Turkey portal |
| Constitutional history of Turkey |
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 First Ottoman Parliament at theOld Darülfünun building |
| Constitutional documents |
| Constitutions |
| Referendums |
| Constitutional Court |
TheConstitution of Turkey, formally known as theConstitution of the Republic of Türkiye (Turkish:Türkiye Cumhuriyeti Anayasası), and informally as theConstitution of 1982 (Turkish:1982 Anayasası), isTurkey'sfundamental law. It establishes the organization of the government, and sets out the principles and rules of thestate's conduct along with its responsibilities in regards to itscitizens. The constitution also establishes therights 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 earlierConstitution of 1961. The constitution was amended 21 times, three of them through a referendum:2007,2010,2017, one of them partly through referendum:1987. As of April 2017, 117 of the 177 articles of the Constitution of 1982 were amended overall.[1]
The first constitution of theOttoman Empire was adopted in1876 and revised in1908.
Since its founding, the modern Turkish state has been governed under four documents:
The current constitution was ratified by popularreferendum during themilitary 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.[2] 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.[3] Following the2017 constitutional referendum, fundamental changes were introduced including changing theparliamentary system in Turkey to apresidential system.[4] The executive, legislative and judiciary power under control by the president may cause less democracy.[5]
The Constitution asserts that Turkey is asecular (2.1) anddemocratic (2.1)republic (1.1) that derives itssovereignty (6.1) from the people. The sovereignty rests with the Turkish Nation, who delegates its exercise to an elected unicameral parliament, theTurkish Grand National Assembly.
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TheArticle 4 declares the immovability of the founding principles of the Republic defined in the first three Articles and bans any proposals for their modification. Thepreamble also invokes the principles ofnationalism, defined as the "material and spiritual well-being of the Republic". The basic nature of Turkey islaïcité (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 aunitarynation-state based on the principles ofsecular democracy.
Fundamental Aims and Duties of the State is defined inArticle 5. Constitution establishes aseparation of powers between the Legislative Power (7.1), Executive Power (8.1), and Judicial Power (9.1) of thestate. The separation of powers between thelegislative and theexecutive is a loose one, whereas the one between the executive and the legislative with thejudiciary is a strict one.
Part Two of the constitution is thebill of rights.Article Twelve guarantees "fundamental rights and freedoms", which are defined as including the:
Article Five of the Constitution sets out theraison 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 internationalbills of rights, such as theUniversal Declaration of Human Rights, which Turkey was one of the first nations to ratify in December 1948.[6]
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,race,color,sex,political opinion, philosophical convictions orreligious beliefs" and guaranteeingtheir equality in the eyes of the law. Borrowing from the French Revolutionary ideals of the nation and the Republic,[citation needed] Article 3 affirms that "The Turkish State, with its territory and nation, is an indivisible entity. Its language isTurkish". Article 66 defines a Turkish civic identity: "everyone bound to the Turkish state through the bond of citizenship is a Turk".
Article 26 establishesfreedom of expression and Articles 27 and 28 the freedom of the press, while Articles 33 and 34 affirm the freedom of association andfreedom of assembly, respectively.
Classes are considered irrelevant in legal terms (A10). The Constitution affirms the right of workers to formlabor 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 tobargain collectively and tostrike, respectively.
Article Seven provides for the establishment of aunicameral 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 ofnational sovereignty: "members of the Turkish Grand National Assembly represent, not merely their ownconstituencies orconstituents, but theNation as a whole".
Part Three, Chapter One (Articles 75–100) sets the rules for theelection 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 ratifytreaties of the Republic with other sovereign states (A90).
ThePresident of the Republic is elected bydirect election and has an executive role as theHead of State, "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.
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Article Nine affirms that the "judicial power shall be exercised by independentcourts 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 ofseparation of powers not only through its independence from theexecutive andlegislative branches of government but by being divided into two entities,Administrative Justice and Judicial Justice, with theDanıştay (The Council of State) thehighest court for the former (A155) andYargıtay (High Court of Appeals) the highest court for the latter (154).
Part Four, Section Two allows for aConstitutional Court that rules on the conformity oflaws andgovernmental decrees to the Constitution. It may hear cases referred by the President of the Republic, the government, themembers of Parliament (A150) or anyjudge before whom a constitutional issue has been raised by adefendant or aplaintiff (A152). The Constitutional Court has the right to botha priori anda posteriori review (respectively, before and after enactment), and can invalidate whole laws or decrees and ban their application for all future cases (A153).
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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 theCouncil of Ministers (A109). Executive power was shared betweenthe 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 itsuniversities (A130-132),local administrations (A127), fundamentalpublic services (A128) andnational security (A117-118). Article 123 stipulates that "the organisation and functions of the administration are based on the principles ofcentralization and local administration".
TheTurkish Armed Forces (TAF) are subordinate to the President, in the capacity of Commander-in-Chief. TheChief 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 is an advisory organization, comprising theChief 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).
In Article 175, it also sets out the procedure of its ownrevision and amendment by eitherreferendum or aqualified 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.[7]
| # | Date | Notes[8] |
|---|---|---|
| 1 | 17 May 1987 | Voting age lowered from 21 to 19, Number of MPs raised from 400 to 450, Lifted1980 ban on politicians,1987 Turkish constitutional referendum |
| 2 | 8 July 1993 | Public radio and televisions allowed |
| 3 | 23 July 1995 | Voting age lowered from 19 to 18, Number of MPs raised from 450 to 550 |
| 4 | 18 June 1999 | Appointment of civilian judges to State Security Courts in place of military judges |
| 5 | 13 August 1999 | Introducedprivatization |
| 6 | 3 October 2001 | Changes in accordance withEuropean Union acquis andEuropean Convention on Human Rights |
| 7 | 21 November 2001 | Changes for rights and retirement of MPs |
| 8 | 27 December 2002 | Introduced interim elections |
| 9 | 7 May 2004 | Second changes made in accordance withEuropean Union acquis |
| 10 | 21 June 2005 | Changes on election ofRadio and Television Supreme Council members |
| 11 | 29 October 2005 | Changes on budget laws |
| 12 | 13 October 2006 | Age of candidacy lowered from 30 to 25 |
| 13 | 10 May 2007 | Temporary law on independent politicians for2007 elections |
| 14 | 31 May 2007 | Parliamentary term is lowered from 5 to 4, President would be elected with popular vote,2007 Turkish constitutional referendum |
| 15 | 9 February 2008 | Changes for public office holders' usage of public services |
| 16 | 7 May 2010 | 2010 Turkish constitutional referendum |
| 17 | 17 March 2011 | Arbitration on sports activities[9] |
| 18 | 20 May 2016 | Reducingparliamentary immunity,[10] especially for opposition and pro-Kurdish parties[11][12] |
| 19 | 21 January 2017 | 2017 Turkish constitutional referendum, introducing a presidential system and abolished the parliamentary system[13] |
The Constitution of 1982 has been criticized as limiting individual cultural and politicalliberties in comparison with the previousconstitution of 1961. Per theTreaty of Lausanne which established the Turkish Republic, legally, the only minorities areGreeks,Armenians andJews, 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 theKurdish population because some articles, especially article 42, are against minority rights.[14] TheCouncil 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 afirst language in schools.[15] The Turkish constitutionalprinciple of not allowing the teaching of other languages as first languages in schools to itscitizens, other than theofficial one is criticized by the EU, human rights organizations and minorities of Turkey.[14] TheKurds, who comprise between 10 and 20% of the Turkish population are not allowed to get education in their mother tongue because of this article.[14]
CurrentlyCircassian,Kurdish,Zaza,Laz languages can be chosen as lessons in some public schools.[16][17][18] 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."[19] In 2015, only 28 schools providedKurdish 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.[14]
The constitution grants freedom of expression, as declared inArticle 26.Article 301 of the Turkish penal code states that "A person who publiclydenigrates the Turkish Nation, the Republic or theGrand 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 byKemal 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 thejustice 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 2008Ergenekon investigation, along with many others.
Although modified several times in the last three decades, specifically within the framework ofEuropean Union reforms, the 1982 constitution is also criticised for giving the military too much influence in political affairs via theNational Security Council.Turkish Armed Forces see themselves as the guardians of the secular and unitary nature of the Republic along withAtatürk's reforms and have intervened by taking over the government three times:[20]in 1960,in 1971 andin 1980.
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