Constitution as a type of legal document

Lecture Days Sect. Weekly topics

Lecture 1: Thu, 29 01 Introduction to the course & administrative
Introduction to Sept matters;
the course and Fri, 30 02 How is law perceived by others?
introduction to Sept
Law and economics;
law
The language of law: legal terminology

Lecture 2: Thu, 6 01 Legal rules as opposed to non-legal rules;

Legal and non- Oct Law and rules;
legal rules Fri, 7 Oct 02 Examples of rules in everyday life;
Main features of legal rules;
what do the signposts tell us?
Non legal rules; Differences between legal
and non-legal rules;
Why is it important to know the difference
between legal and non-legal rules?
 Lecture Days Sect. Weekly topics Compendium Notes
Lecture 3: Thu, 01 Constitution and Statutes 1) Constitutions as a source of law
The making 13 Oct as types of legal 2) The source of power / authority for
of legal rules: Fri, 14 02 documents in the US: the legal document called the
Sources of Oct Colorado Constitution?
written legal Part 1: Identifying the nature 3) The Constitution of the US
rules (i.e. the type/kind) of legal 4) The Congress and Statutes in the
documents that are US
mentioned on the signposts 4.1) Error on slide 31 of Lecture 3
5) When does the need to make laws
Part 2: Statutes and the arise?
Constitution as types of legal 5.1) Explanatory note for the above
documents in the US quote by the instructor
6) Acts or Statutes
7) Delegation of Legislation
7.1) Who delegates legislation?
7.2) How is legislation delegated?
7.3) Justification for Delegated
Legislation
8) Legal language
9) Practice questions
No lectures Thu, 28 01 No lecture as section 02 is cancelled; see
Oct below

Fri, 29 Oct 02 Administrative holiday begins at 13:00 – No

lecture
Part 1: Constitutions as legal documents (instruments) and
sources of power of authority (power)

Part 2: The Turkish Constitution: the document as a

source of authority
Constitution as a legal document (instrument)
and
source of power of authority (power)
 “Law” (Legal rules) is made up of a set of legal
rules of unequal weight.

 The force of law of these rules follows the

principle that a hierarchy of norms / hierarchy
of laws (normlar hiyerarşisi) exists.

 Therefore, in applying a law, one must make

sure that a given rule does not contradict a
principle of law that is superior to it.

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 The legal document (instrument) is called:
A constitution

 The area/field of law is called:

Constitutional law

 The branch of law under which it is categorized:

Public law

 The court which is responsible:

Constitutional court
 The structure of a state
 Distribution of governmental powers (legislative, executive, and
judicial)
 Functions and responsibilities in connection with the exercise of
these powers
 The major state institutions, and the principles governing their
relations with each other and with the state’s citizens.
 Protection of fundamental rights and freedoms
 Limits, constraints on powers to be exercised by governments

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 Public law is one of the 2 main branches of law:

1 – Public law (in Turkish: kamu hukuku / amme hukuku)

2 – Private law (in Turkish: özel hukuk / hususi hukuk)

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 Public law regulates and governs the
relationship between the state and persons
(the term ‘persons’ here includes companies
as well – see the next slide for ‘persons’).

 Private law regulates and governs

relationships between persons (the term
‘persons’ here includes companies as well).
In law, a person could either be:
 A real person (i.e. an individual, a human being),
or
 A legal person (i.e. an institution, an
organisation such as a company; a non-human
legal entity)

Glossary:
Real person (or natural person): gerçek kişi/hakiki şahıs
Legal person (or juridical person): Tüzel kişi, hükmî şahıs
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1 – Constitutional law (anayasa hukuku)

2 – Administrative law (idare hukuku)

3 – Criminal law (ceza hukuku)

Note: In Turkish the word ‘hukuk’ is used here and

not ‘kanun’ since it is the particular field, area,
subject of law in question.
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 Public law:
Law (legal rules) that deal with:

1 – the functions of public authorities and

2 – the relationship between public authorities

and individuals or ‘persons’.

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 Private law
Law (legal rules) concerning dealings:
1 – Between individuals
2 – Between institutions (i.e. legal/juridical persons) other
than institutions of the State
3 – Between individuals and non-State (non-governmental)
institutions (e.g. an individual and a business company)
Examples: contract law, family law, company law, land law
and all other areas of law which are not part of public law

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 The Turkish Constitution:
the document as a source of authority
 The place of the Constitution
in the hierarchy of laws

 The Constitution is the highest in the

hierarchy of written laws

 Article 11 of the Turkish Constitution lays

down this principle – see the next slide for the
original Turkish text and the official English
translation
17

Anayasanın Bağlayıcılığı ve Üstünlüğü
“MADDE 11. –
Anayasa hükümleri* ,
yasama, yürütme ve yargı
organlarını, idare
makamlarını ve diğer kuruluş
ve kişileri bağlayan temel
hukuk kurallarıdır.
Kanunlar Anayasaya aykırı
olamaz.”
*my note: maddelerin içerikleri
Official translation into English at https://global.tbmm.gov.tr/docs/constitution_en.pdf
Supremacy and Binding Force of
the Constitution
“Article 11.
The provisions* of the
Constitution are fundamental
legal rules binding upon
legislative, executive and judicial
organs, and administrative
authorities and other agencies
and individuals.
Laws shall not be in conflict
with the Constitution.”
*My note: content of the Articles
18

Anayasanın Bağlayıcılığı ve Üstünlüğü
“MADDE 11. –
Anayasa hükümleri,
yasama, yürütme ve yargı
organlarını, idare
makamlarını ve diğer
kuruluş ve kişileri bağlayan
temel hukuk kurallarıdır.
Kanunlar Anayasaya
aykırı olamaz.”
Supremacy and Binding Force of
the Constitution
“Article 11.
The provisions of the
Constitution are fundamental
legal rules binding upon
legislative, executive and judicial
organs, and administrative
authorities and other agencies
and individuals.
Laws shall not be in conflict
with the Constitution.”
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 The place of international treaties in the hierarchy of
Turkish laws

 Where fundamental rights and liberties are concerned

international treaties are considered superior to
national legislation

 The relevant provision in the Constitution is on the

following slide

20

Milletlerarası Andlaşmaları
Uygun Bulma
MADDE 90. –
Ek cümle: 7.5.2004-5170/7 md.)
Usulüne göre yürürlüğe
konulmuş temel hak ve
özgürlüklere ilişkin
milletlerarası andlaşmalarla
kanunların aynı konuda farklı
hükümler içermesi nedeniyle
çıkabilecek uyuşmazlıklarda
milletlerarası andlaşma
hükümleri esas alınır.
Ratification of International
Treaties
Article 90.
Amendment inserted on
7/5/2004–
In case of a conflict between
the laws and international
agreements duly put into
effect in the field of
fundamental rights and
freedoms due to different in
provisions on the same
matter, the provisions of the
international agreements
shall prevail.
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Personal inviolability,
corporeal (physical) and
spiritual existence of the
individual:
Everyone has the right to life and
the right to protect and develop his
material and spiritual entity i.e. No
one shall be subjected to torture or
ill-treatment;
Prohibition of Forced Labour:
No one shall be required to perform
forced labour. Unpaid compulsory
work is prohibited.
Kişinin dokunulmazlığı,
maddi ve manevi varlığı
Herkes, yaşama, maddi ve
manevi varlığını koruma ve
geliştirme hakkına sahiptir.
(Madde 17)
Zorla çalıştırma yasağı
Hiç kimse zorla çalıştırılamaz.
Angarya yasaktır. (Madde 18)
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Personal liberty and
security:
Everyone has the right to
personal liberty and security.
Privacy of private life
Everyone has the right to
demand respect for his/her
private and family life.
Privacy of private or family
life shall not be violated.
Kişi hürriyeti ve güvenliği
Herkes, kişi hürriyeti ve
güvenliğine sahiptir. (Madde
19)
Özel hayatın gizliliği
Herkes, özel hayatına ve aile
hayatına saygı gösterilmesini
isteme hakkına sahiptir. Özel
hayatın ve aile hayatının
gizliliğine dokunulamaz
(Madde 20)
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Inviolability of the
domicile
The domicile of an individual
shall not be violated.
Haberleşme hürriyeti
Freedom of
communication
Everyone has the freedom of
communication. Privacy of
communication is
fundamental.
Konut dokunulmazlığı
Kimsenin konutuna
dokunulamaz. (Madde 21)
Herkes, haberleşme
hürriyetine sahiptir.
Haberleşmenin gizliliği
esastır. (Madde 22)
25
Freedom of residence Yerleşme ve seyahat
and movement hürriyeti
Everyone has the freedom Herkes, yerleşme ve
of residence and seyahat hürriyetine
movement. sahiptir. (Madde 23)

Freedom of religion and Din ve vicdan hürriyeti

conscience Herkes, vicdan, dini inanç
Everyone has the freedom ve kanaat hürriyetine
of conscience, religious sahiptir. (Madde 24)
belief and conviction.
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Freedom of thought and
opinion
Everyone has the freedom of
thought and opinion.
Freedom of expression and
dissemination of thought
Everyone has the right to
express and disseminate his/her
thoughts and
opinions by speech, in writing or
in pictures or through other
media, individually or
collectively.
Düşünce ve kanaat hürriyeti
Herkes, düşünce ve kanaat
hürriyetine sahiptir. (Madde 25)
Düşünceyi açıklama ve yayma
hürriyeti
Herkes, düşünce ve kanaatlerini
söz, yazı, resim veya başka yollarla
tek başına veya toplu olarak
açıklama ve yayma hakkına
sahiptir. (Madde 26)
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Freedom of science and
the arts
Everyone has the right to
study and teach, express,
and disseminate science
and the arts, and to carry
out research in these fields
freely.
Freedom of the press
The press is free, and shall
not be censored.
Bilim ve sanat hürriyeti
Herkes, bilim ve sanatı
serbestçe öğrenme ve
öğretme, açıklama, yayma
ve bu alanlarda her türlü
araştırma hakkına sahiptir.
(Madde 27)
Basın hürriyeti
Basın hürdür, sansür
edilemez. (Madde 28)
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Right to hold meetings Toplantı ve gösteri
and demonstration yürüyüşü düzenleme
marches hakkı
Everyone has the right to Herkes, önceden izin
hold unarmed and peaceful almadan, silahsız ve
meetings and saldırısız toplantı ve gösteri
demonstration marches yürüyüşü düzenleme
without prior permission. hakkına sahiptir.(Madde 34)

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 The place of other types of international
agreements in the hierarchy of Turkish laws

These are international agreements to which

Turkey is a party/signatory.

These treaties are those that do not concern

rights and liberties e.g. climate, global
warming, nuclear waste, etc.
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 First constitution in the Ottoman Empire (1876)

 The current Turkish constitution dates from 1982; amended

several times thereafter; most recently in April 2017

 By virtue of the Turkish Constitution of 1961:

1) judicial review was introduced

2) a special constitutional court was established

Judicial review: a review by a higher court of the
actions of a lower court or of an administrative body

Judicial review (yargı denetimi) is exercised by the

constitutional court.

The constitutional court (hence the term ‘judicial’ i.e.

done in court/courtroom/by a judge etc) reviews an
act/law/statute to see if it’s in accordance with the
constitution and to make sure it is not contrary to the
constitution

The Constitutional Court has the power to annul (iptal)

any law (act/statute) passed by the Parliament if it finds
it to be contrary to the Constitution
An author’s (H. Ehrmann) comments on this issue:

“The authority of a court to declare laws and official acts

unconstitutional is a practice which sheds a strong light on the
interplay of law and politics.

It is a judicial act which gives to judges so obvious a share in

policy-making that where it prevails there is little room left for
the pretense that judges only apply the law.

Judicial refusal to apply a law and the extent and scope of the
authority to do so have been regarded as indicators of
independence.

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Judicial review may be sought through:

1) an action for annulment (iptal davası)

2) a plea of unconstitutionality (anayasaya

aykırılık iddiası) (this can be raised by ordinary
courts or by one of the parties during a court
case)

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 An action (i.e. legal case, lawsuit) for annulment
can be brought/lodged/ filed (i.e. an application
can be made requesting that the act/statute/law
be annulled by the constitutional court before
the law has even been implemented (applied)
i.e. as soon as it is published in the Official
Gazette
 Actions for annulment must be made within 60
days following publication of the law in the
Official Gazette

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Only certain people are entitled to make this
application:

 President of the Republic

 Parliamentary groups of the party in power

and of the main opposition party

 A minimum of one-fifth of the total number

of members in the parliament
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ANKARA, Oct 18 (Reuters) - Turkey's main opposition party has applied
to the top court to annul an article added to the penal code that sets
jailtime for spreading "disinformation" as part of a new media law, a party
official said on Tuesday.

Kemal Kilicdaroglu, leader of the Republican People's Party (CHP), had

earlier promised that his party would apply to the Constitutional Court for
the full media law to be annulled.

Parliament approved the bill last week and it became law early on
Tuesday when it was published in the Official Gazette. The government
says it aims to regulate online publications, protect the country and
combat disinformation.
 The Turkish Constitution has 177 articles

 The Italian Constitution has 139 articles

 The US Constitution has 7 articles (for more information see

https://www.archives.gov/founding-docs/constitution/what-
does-it-say [NOT required reading]

 See also
https://constitutioncenter.org/media/files/constitution.pdf [NOT
required reading]

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Comments:
Glossary: irrevocable means that which cannot be revoked i.e.
withdrawn, cancelled, annulled

1) We understand that the following may not be amended or even may

a proposal be made for their amendment:

a) The form (i.e. type of state) of the state, which is a Republic (so we
know the answer to this one)
b) The characteristics of the Republic (what are these characteristics?)
c) The provisions of Article 3 (what are these?)
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 The form (i.e. type of state) of the state,
which is a Republic

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42
The characteristics of the Republic are mentioned above

Instructor’s comments:
1)Awkward English: “…within the notions of public peace…”
God knows what this means but we can guess
2) ‘social state’ (in English the ‘welfare state’)

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 An amendment was made to Article 148 in
2010 on making individual applications can be
made on the ground of breach of
fundamental rights to the Constitutional
Court as seen below:

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45
 Rule of law: where powers used by the state
authorities are subject to limitations set by
law

 Rule of law is an expression which is used in

England, US and other English speaking
countries. In German, its equivalent is
‘Rechtsstaat’

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 the rule of law (Turkish: hukukun üstünlüğü/hukuk devleti;
French: règle de loi/ l’État de droit )
 Principle of government (here in the sense of way of ruling,
running, a manner/way of governing)

 that all persons and the government are

 equal before the law;

 and answerable to the law and

 that no person shall be punished without trial

 Mentioned in Article 2 as follows:

“The Republic of Turkey is a democratic, secular

and social state governed by rule of law, within
the notions of public peace, national solidarity
and justice, respecting human rights…”

51
 Article 2 on human rights:

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 Is there an equivalent to Article 4 of the
Turkish Constitution i.e. are there
‘irrevocable’ provisions?

53
 Is there an equivalent to Article 1 of the
Turkish Constitution i.e. as to the form of the
State?

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