The Development of Constitutional Thought in Turkey

Y llmaz Altug

Tbe idea of a constitution is relatively new in Turkey as compared to Western

Europe. By tbe last quarter of tbe nineteentb centüry, tbere remained only two
European countries witbout a constitution: Russia and Turkey. Tbe first
constitution was proclaimed on December 23, 1876, tbereby usbering in an era
of parliamentary rule for tbe first time in tbe bistory of tbe Ottoman Empire.
Tbis constitution "did not derive from a constituent assembly, but was
promulgated by tbe sovereign power" (Lewis, 1961: 161). A few montbs later,
bowever, it was suspended by Abdülbamit 11 wbo, in doing so, ironically used
tbe very power accorded to bim by tbe Constitution itself wben tbe Russo-
Turkisb war broke out in 1877. Tbe Young Turk revolution of 1908 called for a
return to constitutional regime and the suspended constitution was restored. A
year later, on August 21, 1909, a new law was adopted incorporating several
revisions, amendments and additions to tbe Constitution. It was modified
several times until tbe last Ottoman parliament was dissolved on Aprill 1,1920.
Modern Turkey has bad tbree constitutions, the first of wbicb was adopted in
1921, tbus predating tbe proclarnation of tbe Republic. A fourtb one is being
drafted at tbe time of tbis writing. Tbis essay intends to trace tbe development of
constitutional tbougbt in Turkey tbrougb an examination of tbe constitutions of
tbe Republican period. Tbe background and cbaracteristic aspects of tbe first
tbree constitutions will be discussed and certain recommendations will be
entered witb regard to tbe one in preparation.

TUE 1921 CONSTITUTION

Early on Atatürk bad cbosen tbe nation, ratber tban tbe sultanate or tbe
calipbate, to be tbe source of political power. He considered national will and
/32 Altug

not divine will to be supreme. His choice bad been made even before the
beginning of the War ofIndependence (1920-1922), as can be seen in the Circular
of Amasya (June 22, 1919) as weIl as declarations issued after the Congresses of
Erzurum (August 7, 1919) and Sivas (September 11, 1919) (Altug, 1973: 37,42).
When the First Turkish National Assembly was convened on April 23, 1920,
twelve days after the last Ottoman parliament had been dissolved, one of its most
important tasks was to draft a constitution to serve the needs of the nationalist
government in Ankara. This proved to be a difficult task, especially since the
Ottoman government, under the jurisdiction of the sultan and the constraints
imposed by the allies, continued its activities in the occupied city of Istanbul.
After several months of intensive preparations, the new constitution was
adopted on January 20, 1921.
The 1921 Constitution had 23 articles and a "separate article" (madde-i
münjeride). This constitution was completed by an organic law, Law No. 244 of
July 8, 1922, "On the Election of Cabinet Ministers," and aresolution of the
General Assembly ofthe parliament dated April 14, 1923, "On the Duties and
Responsibilities of the Chairman of the Council of Ministers." The legislations
are an integral part of the 1921 Constitution, which states that sovereignty is
vested in the nation without any reservations and conditions. This principle,
articulated for the first time in Turkish law, was adopted by all succeeding
constitutions. W~th its last provision, "the object of the Parliament is to save the
sultanate and the caliphate," the 1921 Constitution seems to accept the
monarchy. But this last provision was adopted solely in order to insure the
cooperation of the deputies loyal to the sultanate and the caliphate. In reality,
the principle of sovereignty being vested in the nation, without reservation and
condition was a rejection of all sharing of the sovereignty, and therefore, a
rejection of the monarchy itself.
Two later General Assembly resolutions, those of October 30, 1922 and
November 1-2, 1922, stated that the sultanate was abolished from the date of
promulgation of the 1921 Constitution.
Article 1 reads, "The owner and source of sovereignty is the nation itself; the
nation itself determines its destiny." Article 2 continues to explain that "The
sovereignty is represented by the Grand National Assembly, which is the only
and true representative of the Nation. The legislative .and executive powers are
concentrated in the Grand National Assembly. Its members are elected for two
years." Article 3 describes how sovereignty or political power is executed by
stating that "The Turkish State is administered by the Grand National
Assembly." Some political power vested in the Grand National Assembly
(G.N.A.) isdelegated tothegovernment. TheG.N.A., in thedirectapplicationof
political power, enacts, amends or repeals all statutes, executes all religious
affairs, concludes all treaties and is responsible for the defense of the country
 Constitutional Thought /33

(Article 7). The G.N.A. also "appoints all governors and other high
administrative officers" who, then, represent the G.N.A. 1
The government had been divided into ministries by previously enal,:ted
legislation. The law of May 2, 1920, "On the Method ofElecting Ministers ofthe
G.N.A." divided the government into eleven ministries. This was amended by
the law of November 4, 1920 as "The G.N.A. runs the business of these ministries
through the ministers elected by itself and representing itselr' (Article 8).
Ministers, acting in the name ofthe G.N.A., were bound by the restrictions and
limits drawn by the G.N.A. itself. It was the political responsibility of each
minister to conform to those limits, and the G.N.A. had the power to remove
ministers when it considered or judged that they had overstepped these limits
(Article 8).
In the beginning ministers were individually elected by the G.N.A., thus
forming a non-homogenous group. The legislation of November 4, 1920
stipulated that they be elected by the G.N.A. from among three candidates
nominated for each ministry by the Chairman of the G.N.A. According to the
1921 Constitution, which incorporated previous laws on the executive branch,
the ministers thus elected would choose the chairman of the council from among
themse1ves. But the chairman ofthe G.N.A. was also the natural chairman ofthe
Council of Ministers and was thus authorized to confirm the decisions of the
Council of Ministers (Article 9). The powers of Council of Ministers being so
restricted, it could be said that the executive branch did not really exist and that
the G.N.A. held the executive power (Article 2).
Even though the nation enjoyed sovereignty without condition and
reservation, there were restrictions on that sovereignty. The legislative
transactions were restricted in their contents. The G.N.A. enacted laws and the
Council of Ministers, acting in the name of the G.N.A., issued regulations
(nizamname) in accordance with the requirements ofthe law, ofthe time and of
religious principles. And there was no sanction to the latter restrictions, since
there was no constitutional court to declare the laws unconstitutional.
The development of the executive branch began with the law dated July 8,
1922 and the resolution of the General Assembly ofthe G.N.A. dated April 14,
1923 (Abadan and Savcl, 1959: 63). This law brought a new provision: all the
ministers as weil as the chairman of the Council of Ministers were to be elected
by secret ballot and with absolute majority among the members ofthe G.N.A.
The possibility of homogeneity was lost but the election of the chairman of the
Council of Ministers by the G.N.A. itself and the differentiation between the
chairman of the G.N.A. and the Council show an evolution towards the
appointment of a president or a prime minister according to parliamentary rules
(lbid.: 67). Unity, solidarity and common responsibility could still not be
achieved for the Council of Ministers was not an independent board but
134 Altug

remained as a group responsible for applying the executive powerofthe G.N.A.

(Gözübüyük and Sezgin, 1956: 5). It could not have a policy of its own
(Article 8).
Tbe Resolution of the General Assembly dated April 14, 1923 created a
cabinet chief who would be the intermediary between the Council of Ministers
and the G.N .A. and became "the consultation authority" of the ministers. In so
doing, the Resolution came close to establishing the post of the prime minister.
The Constitution was amended by Law No. 364, dated October 29,1923, and
the Republic was proclaimed. Having amended six ofthe articles (I, 2,4, 10, II
and 12) of the Constitution, the new law declared the Turkish state to be a
republic with Islam as its religion and Turkish as the officiallanguage of the
state. The supporters of the caliphate in the G.N.A. had succeeded in
introducing into Article 2 a statement about official religion, although such a
definition did not exist in the original text of the 1921 Constitution.
A major shortcoming of this brief Constitution was that it did not define or
protect judicial power, administration of justice and public civil liberties.
However, an appeals mechanism had been established by the G.N.A. when the
Court ofCassation (Yargltay) was founded according to Law No. 4 of June 7,
1920. The primary aim ofthe 1921 Constitution was to strengthen the national
government during the War of Independence. It fulfilled this objective by
strengthening the G.N.A. and consolidating its power.

THE 1924 CONSTITUTION

Despite the concessions given to the supporters of the sultanate and the
caliphate in the 1921 Constitution and in the amendments of 1923, the desire to
establish a modem, secular state had not lost its momentum. Such astate, based
wholly on national will, would replace the Islamic and monarchic Ottoman
state. But the first step was to consolidate power in Ankara. Several documents
show this trend: the Circular of April 30, 1920 announced that the G.N.A.
founded in Ankara as the only legal authority to deal with internal and external
affairs of the nation.
With the Resolution of June 7, 1920, the General Assembly of the G.N.A.
declared that all contracts agreed upon, official decisions made, concessions
granted or being negotiated and all treaties, secret or open, concluded or to be
concluded without authorization ofthe G .N.A. after March 16, 1920 (the date of
occupation of Istanbul by the allies) were null and void. Meanwhile, the law of
September 5, 1920, "On the Necessary Quorum to Start Debates in the G.N.A."
accepted the existence of the office of the sultanate and of the caliphate.
However, the law ofFebruary 14, 1921 reiterated the contents ofthe Resolution
of June 7, 1920 by stating that all contracts, treaties and other transactions
 Constitutional Thought 135

concluded by the Istanbul Government were null and void, thus supplementing
the Resolution and the earlier Circular.
After victory was won over the occupying forces, the European powers invited
not only representatives of the national government in Ankara but also those of
the almost defunct Istanbul government to the peace talks. The Prime Minister
of the Istanbul Government, Tevfik Pll§a, sent a telegram to Mustafa Kemal,
asking the co operation of the Ankara Government.
The panic of the Istanbul Government prompted action by the G.N.A.
Resolution No. 307, dated October 30, 1922, made clear that the Ottoman
Empire had ended:
The Ottoman Empire has become extinct. The government of
the G.N.A. has been established. The new government replaces
the Ottoman Empire and is its heir with national frontiers.
Accordingly, the sultanate in Istanbul is non-existent and is
relegated to history. There is no legitimate government in
Istanbul. Istanbul and its environs belong to the G.N.A. The
caliphate is within the legal rights of the Turkish Government.
The Turkish Government will save this office from the
foreigners in whose hands it is captive.
The next day, the G.N.A. issued Resolution No. 308 which stated
categorically and in detail that the Ottoman Empire had ended since the
adoption of the Constitution of January 20, 1921. Article 1 reads as folIows:
The Turkish nation is the real owner and founder of the
Ottoman Empire. When the empire collapsed, the Turkish
nation formed the Turkish National Assembly; its government
and its armies rose up and went to war, and attained liberation.
During the struggle, observing the corruption in the Palace and
in the Sublime Porte, it enacted the Constitution. It wrested the
sovereignty from the Sultan and gave it to the nation itself.
By hastily sending a telegram to Ankara, Tevfik Pa§a was striving to
resuscitate the imperial government. Since this was not acceptable to the
G.N.A., his overtures were answered by the following communique:
1. The people of Turkey, by adopting the Constitution, have
decided to exercise their sovereign rights through the Turkish
Grand National Assembly, which is their sole and true
representative, and not to recognize any force or board which is
not based on the national will. For this reason the Turkish
people do not recognize any form of government other than the
Government of the Grand National Assembly of Turkey. For
this reason the people of Turkey consider the form of
government in Istanbul, based on personal sovereignty, as
136 Altug

belonging to history since March 16, 1920.

2. The caliphate, which separated from the sultanate,
belongs to the Ottoman family. The most enlightened and the
most able member of this family, both from a moral and a
religious point of view, will be elected Caliph. The caliphate is
supported by the Turkish State.
Such areaction from the Ankara govemment was warranted since they had
seen the Sultan, his govemment and the religious leaders around him doing
everything possible to keep their privileges, even at the expense of partitioning
Turkey. As a result, political power was shifted to Ankara, where it was
consolidated in a "people's govemment." The latter term had a different
meaning in the Turkish context of the 1920s than it does today. The aim ofthe
nationalist leadership was to bring together all classes as one people to fight for
independence.
Shortly after the proclamation of the Republic, a constitutional committee
was formed to draft a new constitution consonant with the principles of a
modem nation-state. The committee, consisting of twelve members, convened
under the chairmans hip of Yunus Nadi. The draft prepared by this committee
was adopted as the new constitution on April 20, 1924, and remained in force
until May 27, 1960.
In the Official Report 2 presenting the draft to the G.N.A., it was affirmed that
constitutions of other republics had been taken into consideration. The
committee had been inspired particularly by the 1875 Constitutional Laws of the
Third French Republic and by the 1921 Constitution of Poland (Giritli, 1969:
27). The following principles were articulated in the draft: The delegation of
legislative power is not permissible. Executive power belongs to the G.N.A., but
since the G.N.A. is not able to exercise it routinely, a president is given the
authority to exercise executive power in the name of the G.N.A. If executive
power were to be exercised by a hereditary roler and if the council of ministers
were to be chosen from outside the G.N.A., the right of sovereignty would be
endangered. Considering difficulties of transportation and expenses of election
campaigns, the term of office of deputies is increased to four years, in keeping
with the system adopted in most countries. The rights of the G.N.A. as a
legislative body are not limited. The president is elected for seven years and can
serve consecutive terms. The presidency is impartial and the president does not
participate in parliamentary debates of voting. Decentralization meant
weakening the system and was rejected.
Previously, constitutions and constitutional amendments required the vote of
an absolute majority in order to be adopted. The 1924 Constitution stipulated
two-thirds majority of the plenary session. A constituent assembly was
considered superfluous. Although three members of the Constitutional
 Constitutional Thought 137

Committee had opted for a Second Assembly, this, too, was rejected.
After many changes in the draft, the 1924 Constitution, as adopted, contained
105 articles. The lengthy document was organized under six chapters:
Fundamental Provisions (Articles 1-8); Legislative Power (Articles 9-30);
Executive Power (Articles 31-52); ludicial Power (Articles 53-67); Civil
Liberties of Turkish Citizens (Articles 68-88); and Miscellaneous(Articles 89-
105). It admitted abipartite separation of powers (the Assem bly and the courts)
with a tripartite separation offunctions (legislative, executive andjudicial). But
it confirmed the G.N.A. as the sole owner and executive of the right of
sovereignty; according to Article 4, the G.N.A. "exercises sovereignty in the
name of the nation."
A characteristic of the 1924 Constitution was that all legislative and executive
powers emanating from the right of sovereignty were "manifest and
concentrated in the G.N.A." (Article 5). Article 6 stated that "The G.N.A. itself
exercises the legislative power," a manifestation of sovereignty. Furthermore, all
exceptional acts were to be executed exclusively by the G.N.A.:
The G.N.A. directly exercises such functions as enacting,
modifying, interpreting and abrogating laws; concluding
conventions and treaties of peace with foreign states; declaring
war; examining and approving laws relative to the General
Budget and the Final Accounts of the State, coining money,
approving or annulling contracts and concessions involving
financial obligations; proclaiming partial or general amnesty;
reducing or modifying sentences, postponing legal
investigations and penalties and executing definitive death
sentences pronounced by the courts (Davis, 1953: 455).
The G.N.A. executes all other administrative acts through an executive organ,
which it elects from among its members: "The G.N.A. exercises its executive
authority through the person of the President of the Republic elected by it and a
Council of Ministers chosen by the President. The Assembly may at any time
control the activities of the Government and may dismiss it" (Article 7).
By assigning both the legislative and the executive powers to the G.N.A., the
1924 Constitution did not allow an executive organ with an identity completely
separate from and independent of the legislative organ. Elected from among the
members of the G.N.A., the executive organ functioned und er the will of the
G.N.A. and as a committee oft he G.N.A. The government was formed with the
President of the Republic designating a prime minister who would then
nominate ministers. The list was subject to the approval of the president before
being presented to the G.N.A., along with the program ofthe government. The
executive organ had to obey the laws and resolutions promulgated by the
G.N.A. Although the president had veto power, he could use this power only
/38 Altug

once for each newly enacted legislation. He could return any act which he
deemed not to be in the public interest to the G.N.A. to be debated once more,
but in the case of readoption, he was obliged to proclaim the law (Article 35).
While, theoretically, it was impossible for the executive organ to res ist the
highest office of sovereignty, the G.N.A., the latter was given power to set and
execute policies through legislation or parliamentary resolution. Tbe executive
organ, then, had to follow the policies determined by and to act in conformity
with the will of the G.N.A.
Under a complete parliamentary regime, the government is always
accountable to the parliament. However, there are conditions stipulated under
which a parliament can dismiss the government. In the 1924 Constitution, the
G.N.A. was not restricted and had the power to dismiss the government at any
time. Since there was no organ superior to the G.N.A., it was impossible to
consider its dissolution by another organ. Dut the G.N.A. could dissolve itself
before the expiration of its term and could call for elections (Article 25). This last
provision was included as areaction to the Constitutions of 1876 and 1909,
which gave the executive organ the power to dissolve the parliament and thus to
leave the country without national representation and control. Having such a
power had given the opportunity to Abdülhamit 11 to exercise personal
sovereignty by dissolving the Parliament unilaterally in 1877 and to the Union
and Progress leaders to get rid of a parliament, whose composition they did not
like, by dissolving it in 1911. With no power to dissolve the G.N .A., the executive
organ of the First Turkish Republic did not have a constitutional means to be
effective against the G.N.A.
Reinforcing "Assembly Government," a form adopted in 1920, was another
characteristic of the 1924 Constitution. Tbis form of government required that
the G.N.A. exercise control over the administration and management ofpublic
affairs at all times without interruption. This was a must not only because the
G.N.A. exercised sovereignty but also because it was the highest organ to issue
directives and make policy. Suspension of work was allowed in order to give
members of the G.N.A. time to visit their districts and to collect material for
their supervisory functions as weIl as to provide for their personal rest. Such
suspensions could not exceed six months within any given year.
A third characteristic aspect of the 1924 Constitution is that it gave the system
the appearance of a parliamentary government. The previous constitution not
only prevented the cabinet from having homogeneity but also included the
strange provision of having the ministers elect their chairman rather than having
a prime minister choosing his ministers. It was with the Resolution of April 14,
1923 and Law No. 364 of October 29, 1923 that the collective responsibility of a
cabinet functioning under the instruction and guidance of a prime minister was
introduced. The 1924 Constitution emphasized collective responsibility of
 Constitutional Thought /39

ministers, and united the government around a common program and a general
policy approved by the G.N.A.
The 1924 Constitution also envisaged a multi-party system by differentiating
between president and prime minister. The similarity to a full parliamentary
regime is obvious. There is a non-responsible president of state who designates a
prime minister to head the government and to form a cabinet. Executive
responsibility lies with the cabinet, the members ofwhich are united around the
party program articulated by the prime minister. As such executive power
becomes collective, united and joint. So, too, with the 1924 Constitution, under
which the cabinet became an institution headed by the leader of a political party,
and ceased to be a committee of the legislature.
Finally, Article 15 of the 1924 Constitution conferred on the executiye the
right to introduce laws and to defend its policies and actions in all the
committees and in the General Assembly of the G.N.A. The executive could
influence the legislative in two further ways: one, as mentioned above, was that
the President was given the authority to ratify, publish and proclaim acts ofthe
parliament. Second, the prime minister, increasingly taking on the role of a party
leader, could appeal to party authority in the G.N.A. These characteristics,
emanating from law or from practice, rendered the executive increasingly strong
and influential. 3
The 1924 Constitution was amended seven times. On April 10, 1928, Article 2,
establishing Islam as the official religion of the state was amended. With this
secularizing amendment all religious terms and references to religion were also
removed from Articles 16,26, and 38. The Amendment of December 10, 1931
stipulated that the government present its budget to the G.N.A. three months
prior to the beginning of each fiscal year. With the amendment ofDecember 11,
1934 suffrage was extended to women. Now all citizens of 22 years of age or older
could vote and those 30 or older could become deputies in the G.N.A. For the
first time women deputies won seats in the elections held the following year.
The fourth was the Amendment of February 5, 1937. With this amendment,
the six principles of the Republican People's Party were introduced into the
Constitution. Article 2 now read: "The Turkish State is republican, nationalist,
populist, etatist, secular and reformist." The position of political undersecretary
was created in each ministry. These undersecretaries were to be chosen among
the members ofthe G.N.A., nominated by the prime minister and appointed by
the President.
On November 29, 1937, Articles 44, 47, 48, 49, 50 and 51 were amended. This
amendment brought the restriction that a minister could not temporarily act on
behalf of more than one other minister at any given time. The sixth amendment,
that of January 10, 1945, changed the language oft he Constitution. Antiquated
terminology as weil as words of Arabic origin were replaced with the
140 Altug

Amendment of December 24, 1952.

The main shortcoming of the 1924 Constitution was that by establishing the
supremacy ofthe G.N.A., it brought about the absolutism ofthe majority. Four
different types of solutions were proposed in order to remedy the situation. One
was the introduction of proportional representation. One prominent
constitutionallawyer, however, proposed the direct election system with smaller
districts (darböige) as a remedy, claiming that such a system best suited the
Turkish character. 4 The establishment of a constitutional court was proposed as
another remedy (Esen, 1978: 18). The opponents of this proposal claimed that
Article 103 provided for constitutional control by judges but that judges were
reluctant to use it. In fact, such a control did not exist at all, because judges were
not protected from any arbitrary display of executive power and could be
penalized for insisting on the constitutionality of laws by being transferred or
demoted. S A third solution suggested was the strengthening of civil liberties
through amendments to the Constitution, while a fourth group called for a
second assembly.
Some critics have po in ted to the brevity of the 1924 Constitution as a
shortcoming, allowing for a variety ofinterpretation. However, others, precisely
for the same reasons, have defended short constitutions as being flexible and
open to interpretation. 6 They point to the difficulty of enforcing long
constitutions (Armagan, 1975: 33) and claim that many details incorporated in
long constitutions do not belong there at all hut in other laws. Lengthy
constitutions, on the other hand, are also often defended because of their
perceived educative role. The length and scope of the 1924 Constitution
continued to be a subject of disagreement until it was abolished.
Other weaknesses of this Constitution were that it did not provide for an
impartial chairmans hip of the Assembly and did not include clauses on
economic and social rights. Although it did not render executive acts or
procedures immune from review by law-enforcing courts, the 1924 Constitution
was nevertheless utilized by the politicalleaders of the 19508 to serve their own
ends. The Constitution failed when the regime chose to enforce it selectively.
Ultimately, the failure of the Constitution was human failure.

THE 1961 CONSTITUTION

On May 27, 1960, the Democrat Party was swept from power by a military
coup. The leaders of the coup formed the National Unity Committee (NUC)
which enacted a Temporary Constitution on June 12, 1960 and abrogated the
provisions of the 1924 Constitution relating to the legislative and executive
powers. This temporary Constitution gave the NUC power to draft legislation
and appoint the Council of Ministers. The Temporary Constitution consisting
 Constitutional Thought 141

of 27 articles remained in force until the 1961 Constitution was put into effect.
On the very first day of the coup, the NUC appointed a special commission
composed of professors from the University of Istanbul and Ankara University
to draft a new constitution. The draft was presented to NUC on October 15,
1960. Later, a Constituent Assembly was formed according to the provisions of
LawNo. 1570fDecember 13,1960. TheConstituentAssemblywascomposedof
two chambers: the Assembly consisting of representatives chosen according to
Law No. 158 of December 13, 1960 and a second chamber consisting of the
twenty-three members of the NUC. Since the conditions prevailing in the
country did not allow for a regular general election, certain organizations and
political parties sent their representatives to the Constituent Assembly in
accordance with Law No. 157. The Assembly of Representatives convened in
Ankara on January 6, 1961 and appointed twenty of its members to form a
constitutional commission.
Laws adopted by the Assembly of Representatives had to be approved by the
NUC. The Assembly debated the draft constitution and, in fact, many of the
articles it adopted were sent back by the NUC for approval. The final draft
adopted by the Assembly of Representatives and approved by the NUC was
submitted to popular vote by the referendum of July 9, 1961. Approved by 61.5
percent of the voters, the new constitution was promulgated on July 20, 1961.
The 1961 Constitution consisted of 157 articles and eleven temporary articles
divided into six parts: "General Principles" (Articles 1-9); "Fundamental Rights
and Duties" (Articles 10-62); "The Basic Organization ofthe Republic" (Articles
63-152); "Miscellaneous Provisions" (Articles 153-154); "Temporary
Provisions" (Temporary Articles 1-11); and "Final Provisions" (Articles 155-
157). For the first time in Turkey a Preamble was included stating the
fundamental principles underlying the Constitution.
New institut ions included in the 1961 Constitution were the Senate of the
Republic (Articles 63, 70, 7 I, 72, 73) the Constitutional Court (Articles 145-152)
the National Security Council (Article II I) and the State Planning Organization
(Article 129).
Interestingly enough, the creation of a Constitutional Court, which had
become a major issue of contention in the 1950s, was accepted without any
dispute in 1961. When the Democrat Party was removed from power in 1960,
the Constitutional Court which was to be set up under the new
regime seemed a panacea to many Turkish citizens. Duringthe
preparatory activities of the new Constitution, therefore, the
need for a Constitutional Court was never questioned. The
legislative history of the 1961 Constitution records no
opposition to the establishment of a Constitutional Court. In
fact, this was one of the few points on which all the members of
142 Altug

the Constitutional Assembly, the intelligentsia and the military

agreed. The Constitutional Court was expected to counter-
balance political institutions wh ich had provided ample proof
in recent history of their tendency to abuse their powers
(Aybay, 1978: 342).
The National Security was established to "communicate the requisite
fundamental recommendations to the Council of Ministers with the purpose of
assisting in the making of decisions related to national security and
coordination" (Article 111). The State Planning Organization had been
established previously by Law No. 91 of September 30, 1960. It was
incorporated in the 1961 Constitution with Article 129 which stated that
"Economic, social and cultural development is based on a plan. Development is
carried out according to this plan. The organization and functions of the State
Planning Organization, the principles to be observed in the preparation,
execution and application and revision ofthe plan, and the measures designed to
prevent changes tending to impair the unity of the plan shall be regulated by
speciallegislation." Such legislation was enacted (c.! Öztürk, 1975: 251).
Modern concepts in constitutional law such as economic and social rights,
welfare state, social justice and the review of all administrative acts and
procedures by law-enforcing courts were incorporated into the 1961
Constitution. The term "social state" was used to denote welfare state, the aim of
which was to provide adecent standard of living to its citizens. Article 2
explicitly stated that: "The Turkish Republic is a nationalistic, democratic,
secular and social state, governed by the rule of law, based on human rights and
the fundamental tenets set forth in the Preamble."
The concept of sovereignty found in the 1921 and 1924 Constitutions was
changed. Sovereignty still belonged to the nation: "Sovereignty is vested in the
nation without reservation and condition." But it was no longer solely
represented and exercised by the G.N.A. Rather, "the nation shall exercise its
sovereignty through the authorized agencies as prescribed by the principles laid
down in the Constitution." There were, however, restrictions placed on
delegating sovereignty: "The right to exercise such sovereignty shall not be
delegated to any person, group or class. No person or agency shall exercise any
state authority which does not derive its origin from the Constitution" (Article
4). Why, then, was the exercise of sovereignty given to, besides the G. N .A., some
other "authorized agencies?" As Aybay explains,
in the very roots of the 1961 Constitution there lies amistrust of
the organs dependent on universal suffrage. The 1961
Constitution, while aiming at the establishment of a system in
which the free exercise of political rights would be fully
guaranteed, strove to limit political power through certain
 Constitutional Thought 143

automonous, independent, non-political institutions: among

these institutions, along with the Constitutional Court, are the
Supreme Council of Judges, the Supreme Election Board and
the Universities (Aybay, 1978: 338).
According to the 1961 Constitution, the legislative power is general and
original as is the judicial power: "The Legislative power is vested in the Turkish
Grand National Assembly. The power shall be delegated" (Article 5). It is
noteworthy that the Constitution spoke of executive function instead of
executive power, function being less than power: "The executive function shall
be carried out by the President of the Republic and the Council of Ministers
within the framework of the law" (Article 6).
The 1961 Constitution was based on a parliamentary system. The G.N.A. was
elected by the nation and the President of the Republic was elected by the
G.N.A. from "among those members of the Turkish G.N.A. who have
completed their fortieth year and received higher education" (Article 95). The
prime minister had to be a member of the G.N.A. The ministers were to be
nomina ted by the prime minister and appointed by the President of the Republic
''from among the members of the Turkish Grand National Assembly, or from
those qualified for election as deputies" (Article 102). "These characteristics
reflect the concept of the superiority of the Legislature and the Judiciary over the
Executive and deny the administration any 'inherent' power. In order to exercise
any authority, the administration must be specifically empowered by a law
passed by the Legislature. This does not mean, however, that the administration
does not possess any rule-making power" (Aybay, 1978: 340).
Tbe Office of Religious Affairs (Diyanet I§leri Ba§kanhgl) was incorporated
in the 1961 Constitution (Article 154). This seems to be contradictory to the
principle of secular state and to the notion of equality articulated in Article 12:
"All individuals are equal before the law irrespective of language, race, sex,
political opinion, philosophical view, religion or religious sect. No privileges
shall be granted to any individual, family, group or class." The Office of
Religious Affairs, wh ich had been created before the 1961 Constitution, deals
only with Islam. Even though secularism is a tenet of the Turkish Republic, the
State is nevertheless under obligation to regulate the daily life of its citizens and
Islam is part of the daily lives of 95 percent of Turkish citizens. In addition,
unlike most other religions, Islam does not have an organization of its own
because state and religion were originally unified and identical. Orthodox Islam,
for example, has no hierarchy of clergy. Before the Republic, the State had been
responsible for providing religious organization. The Republic, in order to
maintain the separation of religious affairs and general administration provided
that the state was bound to keep continual vigilance over Islam. It is for this
reason that the Office of Religious Affairs had been created and placed under the
144 Altug

prime ministry.
The 1961 Constitution recognized both centralization and decentralization:
"The organization and functions of the administration are based both on the
principles of centralization and decentralization" (Article 112). The same article
also takes up the matter of the indivisibility of the public, corporate nature of the
administration. Because of historical factors, however, centralism has had far
more weight in practice (Aybay, 1978: 341).
Whether in power or in opposition, political parties were made indispensable
entities of democratic political life by Article 56. Article 57 articulated the
principles according to which political parties were expected to operate:
The statutes, programs and activities of political parties shall
conform to the principles of a democratic and secular republic
based on human rights and liberties, and to the fundamental
principle ofthe State's territorial and national integrity. Parties
failing to conform to these provisions shall be permanently
dissolved. Political parties shall account for their sources of
income and expenditures to the Constitutional Court.
The internal affairs and activities of political parties, the
manner in which they shall be accountable to the
Constitutional Court, and the manner in which this court shall
audit their finances shall be regulated by law in accordance
with democratic principles.
Actions in law involving the dissolution of political parties
shall be heard at the Constitutional Court, and the verdict to
dissclve them shall be rendered only by this court.
Like the establishment of the Constitutional Court, the provisions governing
political parties proved to be an area of concensus in the Constituent Assembly:
Articles 56 and 57 were adopted by the Assembly and approved by NUC without
any lengthy debate (Kili, 1971: 122).
There were seven amendments to the 1961 Constitution. 7 Even though the
1961 Constitution was itself adopted by a referendum, amendments were to be
adopted by a two-thirds majority vote of the plenary session of each legislative
body. Proposals for amending the Constitution had to be submitted in writing
and signed by at least one-third of the membership of the plenary session of the
Turkish Grand National Assembly, but not to be debated with urgency.
The main problem with the 1961 Constitution was that many of the new
, such as the Constitutional Courts and the Senate of
institutions it introduced,
the Republic, did not live up to expectations. This was pointed out by General
Kenan Evren in his radio address on September 12, 1980, when the Armed
Forces intervened:
Some Constitutional organs under various influences chose to
 Constitutional Thought 145

remain silent vis-a-vis anarchy, terror and separatism instead

of following an impartial, just and common path. In spite of all
these conditions our constitutional organs which are
responsible for defending the fundamental principles of the
rule of law either could not perceive the importance of the
danger that anarchism created at the highest level of the state,
or were afraid of terror cells. They tried to hide from their eyes
the fact that the state was running the danger ofbeing blown up
any minute with the dynamite placed at its foundation.
The Constitutional Court had acted as a substitute for the Legislature and the
Council of State for the executive. The Senate of the Republic, wh ich had been
created in order to counter-balance the absolutism of the majority in the
National Assembly did not play an effective role because of its composition.
Party leadership gained authority over senators as weIl as deputies. There were
only two groups in the Senate that did not belong to a political party: the
members of the NUC, who were appointed senators for life, and fifteen senators
appointed by the President of the Republic. These thirty-eight senators could
have been a balancing force against the other 112 senators committed to serving
the interest oftheir own parties but the National Unity group allied itselfwith the
Republican People's Party in its struggle for survival. The fifteen presidential
quota senators remained the only independent group.
Constitutional organs were created in such a way so as to control any political
party having a majority in a working assembly. Thc cast: of a non-working
assembly, an assembly prevented purposely from functioning by its own
members, was not envisioned and remedies were not prescribed. The only
conceivable remedy was the dissolution of the Assembly by its own members: "If
the Council of Ministers is unseated twice by a vote of no confidence according
to Articles 898 and 1049 of the Constitution within aperiod of eighteen months,
and if thereafter a third vote of no confidence is passed, the Prime Minister may
request the President of the Republic to call new elections for the National
Assembly. Whereupon, the President of the Republic, after consultation with
the Chairmen of the legislative bodies, may decide to call new elections. Such
decision shall be promulgated in the Official Gazette and immediately thereafter
steps shall be taken to hold new elections" (Article 108). This was not doneuntil
the bitter end. In fact, given the tenaciousness of the politicians, the probability
of calling new elections was remote, and it did not occur even once under the
1961 Constitution. There was no provision in the Constitution for proceeding
automatically to elections in the case of astalemate, and that is exactly what
happened.
The vagaries of the Office of the President were another problem. The
Presidency was not supposed to be vacant: "The Turkish Grand National
146 Altug

Assembly shall elect the new President of the Republic 15 days prior to the
expiration of the term of office of the outgoing president; in the event of
emergency vacancy, a new President will be elected immediately" (Article 101).
This was an obligation of the G.N.A. but the Constitution did not bring
sanctions to this obligation by providing a time limit or limit on the number of
ballots. What would happen to the Assembly if it were not able to elect a new
president was unclear. When in 1980 President Korutürk's term of seven years
expired, the G.N.A. was not able to elect a new president for over six months
after more than one hundred rounds of balloting. In Greece, if the parliament is
not able to elect a president in three consecutive tours, general elections
automatically take place. In France, the president dissolves the parliament if he
reaches the conclusion that the state is unable to function because of astalemate
in the parliament. In England, the Queen dissolves Parliament at the request of
the prime minister. In Turkey, not having an organ other than the G.N.A. itself
empowered to dissolve the G.N.A., intervention from the outside became
unavoidable. Continued baIloting for the presidency , with no end in sight,
resulted in the intervention by the Armed Forces on September 12, 1980.
The 1961 Constitution, 10ng and detailed, was weIl prepared and weIl debated.
It was the brainchild of distinguished scholars. However, as the dictum goes,
there is never the rule of law, there is always the rule of men. The 1961
Constitution was subverted by a lack of experience and of goodwill. The newly
created institutions and those that were re-organized abused their newly
acquired power. Despite the fact that the drafters of the Constitution tried to
avoid loopholes, the system of checks and balances was weak. "The elaborate
nature of the Constitution of 1961 reflects its makers' caution consequent on the
lessons of the past and their desire to avoid, as much as possible, any loopholes
that might lead to the abuse of power" (Aybay, 1978: 335). But they were not
very successful.

RECOMMENDA TIONS FOR A NEW CONSTITUTION

All shortcomings of the 1961 Constitution must be corrected. The powers of

the President must be enlarged and considered in terms of normal and
extraordinary situations. Although Article 6 ofthe 1961 Constitution states that
"The Executive function shall be carried out by the President of the Republic
and the Council of Ministers within the framework ofthe law, "the President did
not have enough powers to carry out his executive function. The idea that ''the
principle of rule of law also means that the law must not give the government too
much power" (Aybay, 1978: 339) resulted in this restrietion. According to the
Constitution, the President, in ta king the oath of office, took on the
responsibility to fight any threat directed against the independence of the
 Constitutional Thought /47

Turkish state or against the integrity of the fatherland and the nation (Article
96). However, he was not invested with any powers. On the contrary, no one
objected during the debates in the Constituent Assembly when it was clearly
stated by one member that ''the President's powers as pointed out by this
Constitution are very restricted" (Kili, 1971: 128).
In the 1982 Constitution, the Presidency must be strengthened. The French
Constitution leaves it to the discretion of the president to declare emergency
situations. The President of the Republic must also have power to appoint,
control and even participate in the procedures of such legal and autonomous
organizations as the Supreme Council of Judges and the Board of Higher
Education. The experience of the past decade renders this a necessity. But the
President of the Republic must be elected by the G:N.A. from among its
members. A presidential system functioning outside the G~N.A. is not
compatible with constitutional development in Turkey.IO
The bicameral system must be retained but the legislature must not be the
absolute judge in the fulfillment of executive function. The prime minister,
appointed by the President of the Republic according to the election results, and
the Council of Ministers, chosen by the prime minister, should be allowed to
start functioning without a vote of confidence in the G.N.A. Both in England
and France, governments appointed begin functioning without a vote of
confidence. Just as the Presidency has authority to appoint the Council of
Ministers, so too, the President must have power to remove a minister if asked to
do so by the prime minister.
The inadequacy of parliamentary investigations must be corrected. In the
past, majority groups in the G.N.A. could find the means to cover up crimes
commited by ministers. Not once during the application of the 1961
Constitution was a minister impeached and brought to trial by the
Constitutional Court sitting as High Council (Yüce Divan). After the
dissolution of the G.N.A., several ministers were tried and sentenced, one
receiving 36 years for corruption and bribery. The privileges of members of the
legislative body must be reduced to aminimum. For example, if a member has
been sentenced because of criminal charges before or after his election, this
criminal sentence must be executed and not suspended until his membership
expires. Some members of the parliament never served criminal sentences
because they were elected consecutively for six or seven terms. Moreover,
members of the parliament must not have immunity against prosecution for
crimes outside the Assembly but must be tried by the Constitutional Court.
The rule of attendance of the legislators must be maintained. However, the
rule requiring the absolute majority of the plenary session to obtain a meeting
quorum must be dropped in favor of a meeting quorum with only one-fourth of
the plenary session attending. The deputies and ~enators must be made to playa
148 Altug

greater participatory role ratber tban playing only a confirmatory role. Finally,
tbe bureaucracy must be kept apolitical. An office of ombudsman must be
created and a more efficient system of cbecks and balances must be introduced.
Constitutional development in Turkey bas been a continuous process ever
since tbe inception of tbe first constitutional regime in 1876. Tbe nature of tbis
development indicates tbat Turkey tried to establisb a system of political
democracy first and tben one of economic democracy. Tbe 1876 Constitution
was a milestone in tbe nineteentb-century struggle by tbe intelligentsia to
establisb political rigbts and liberties. But tbe struggle oftbe intellectuals was not
an easy one and tbey were soon defeated by tbe despotism of Abdülbamit 11.
Later tbe Young Turks used tbe issue of a Constitution to gain political power,
but soon after gaining power, tbe Committee of Union and Progress leaders
disregarded tbe Constitution. A constitutional tradition bad not been created.
A tradition was establisbed witb tbe creation oft be National Assembly in 1920
and tbe adoption of a modern constitution in 1921. Tbe 1921 Constitution, as we
bave seen, brougbt about tbe complete supremacy of tbe legislative organ over
tbe executive organ. Since then, tbe pendulum bas sbifted back and fortb
between a stronger executive and a stronger legislative brancb. Witb tbe 1961
Constitution, tbe power of botb tbe legislative and tbe executive brancbes were
deflected, to a certain extent, by tbe distribution of sovereignty among otber
constitutional organizations. Tbe safeguards built into eacb previous
constitution, however, seem to have failed in practice. Yet, the constitutional
tradition itself bas not been impaired. Witb new generations being conscious of
constitutional safeguards and more and more people following closely
constitutional developments, tbe rule of law bas become a well-establisbed
concept in Turkey. As sucb, tbe constitutional tradition can be expected to
continue without interruption leading to a better understanding of political,
social and eCQnomic democracy.

NOTES
I. For the text of the 1921 Constitution, see Altut (1973: 121-122).
2. For the complete text of the Official Report, see G6zübüyük and Sezgin (1956: 1-9).
3. Esen (1978: 17-18), in discussing the characteristics ofthe 1924 Constitution, identifies three
periods in the evolution of this law: (I) the characteristics resulting from the conditions existing at the
time the Constitution was adopted, i.e., the need for a rigid constitution and a govemment based on
the will of the people; (2) the characteristics acquired soon after the Constitution was adopted and
related to secular orientation; and (3) the characterstics acquired as a result of political development
after 1946. The omnipotence of the legislative branch raised serious concem after the establishment
of a multi-party system in 1946 and demands were raised for a constitutional court and for
strengthening the civil liberties c1auses in the Constitution against infringement by the legislative
power. Esen's interpretation was first presented in a paper, "The Characteristics of the 1924
Constitution," delivered in a seminar jointly organized by the Columbia Law School and Istanbul
 Constitutional Thought /49

University Faculty of Law, and held in Kilyos, Istanbul (1959).

4. HUseyin Naili Kubah at the Kilyos, Istanbul, Seminar (1959): c.J. Armalan: Kanun-u Esasi'inn
100. Y,/, (Ankara, 1978), p. 40.
5. Ismet Giritli at the Kilyos Seminar: c.J. Ibid., pp. 19-20.
6. Ali Fuat 8a§gil and Walter Gelhorn at the Kilyos Seminar: c.J. Ibid., pp. 12, 9.
7. Tbe seven amendments were as folIows: (I) Article 68 and Temporary Article II were amended
by Law No. 1188 of November 6, 1969 (Resmi Gazete. No. 13349, November 12, 1969). Tbis law was
overtumed by the Constitutional Court (RG, No. 13858, June 7, 1971). (2) Article 70 was amended
by Law No. 12S4 of April 17, 1970, and a temporary article was added (RG, No. 13478, April 22,
1970). (3) On thesameday, Article 131 was amended by LawNo. 1255. (4) Afterthe Memorandum
of March 12, 1971, issued by the Chief of General Staff and the Chiefs of the Land, Sea and Air
Forces, forcing the govemment to resign because of its inability to cope with the anarchie situation;
Articles 56and 82wereamendedbyLawNo. 1421 ofJune30, 1971 (RG, No. 13883,July2, 1971).(5)
Also during the "national govemment" of Nihat Erim backed by the military, thirty-five articles were
amended and nine temporary articles were added by Law No. 1488 of September 20, 1971 (RG, No.
13964, September 22, 1971). (6) On March 15, 1973, before the general elections, Articles 30, 57, 136,
138 and 148 were amended and two temporary articles were added by Law No. 1699 (RG, No. 14482,
March 20, 1973). (7) Article 68 and Temporary Article 11 were again amended by Law No. lSOI of
April 16, 1974 (RG, No: 14866, April 22, 1974).
8. Article 89 dwelt on a motion of no confidence accompanied by a statement of the reasons
during a debate of an interpellation or of arequest for a vote of confidence on the part of the Council
of Ministers.
9. Article 104 refers to a vote of no confidence resulting from a request by the prime minister for a
vote of confidence in the National Assembly after having discussed the request at a meeting of the
Council of Ministers.
10. 'Fhis was also pointed out in the report ofthe Council ofState presented to the Chairman ofthe
Constitutional Commision of the Advisory Assembly. c.J. Cumhuriyet, March 25, 1982.