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Both the government and the opposition have again brought up a Constitutional amendment and a new Constitution before the elections.
While the ruling People's Alliance of the AKP and MHP is preparing to bring to the Parliament a Constitutional amendment, the Nation Alliance and the Labor and Freedom Alliance have also made public the amendments they are planning to make.
The Labor and Freedom Alliance formed by the People's Democratic Party (HDP) and five socialist-left political parties and groups said in the declaration of the alliance, "We need to urgently lift the election threshold, guarantee the use of democratic rights and political freedoms, and establish a democratic, impartial and independent judiciary system. Our target is to construct a democracy based on the real sovereignty of people and democratic, libertarian, and equalitarian principles.
The Nation Alliance or Table of Six, made up of the Republican People's Party (CHP), DEVA Party, Democratic Party, İYİ Party, and Saadet Party announced their proposals for Constitutional amendments for transition to a strengthened parliamentary system on November 28. Separation of powers is emphasized in the proposal made up of 84 articles.
A new Constitution was widely discussed in 2011, drafts were prepared but left aside. bianet had at that time gone into how the 1921, 1924, 1961, and 1982 Constitutions were prepared and how they were different from each another.
Let us now again remember what happened concerning the Constitution of Türkiye in the last 101 years while the discussions for Constitutional amendments are again on the political agenda.
1921: "Sovereignty belongs unconditionally to people"
1921 Constitution, which is the first constitution of the Republic period was adopted on January 20, 1921. Both the preparation and the structure of this constitution reflected the extraordinary conditions of the period.
The draft prepared by the Board of Ministers and presented to the General Assembly of the Parliament on September 18, 1920 was sent to a special commission (Encümen-i Mahsus). The report prepared by the commission was approved in the General Assembly after two months of discussions.
This was a constitution in which rules such as a qualified majority provided for "strict constitutions" were not present. The 1921 Constitution which was shorter than the others was made up of 23 articles.
This was the first constitution stating that "sovereignty belonged unconditionally to people" and the regime was defined as "the people controlling its own destiny directly and actively."
This constitution was in force for three years and three months. On October 29, 1923, the Republic was proclaimed, changing some of its articles and the Presidency seat was established.
1924: Definition of "Turk" in Constitution
A more detailed constitution was needed following the war. A committee was established in the Grand National Assembly (BMM) for this purpose. Since there was no provision in the 1921 Constitution on how the constitution can be amended, the BMM indicated that the votes of two-thirds of the total members of the assembly were needed for the adoption of the constitution, acting as a constituent assembly.
The draft prepared by the commission taking the French II. Republic and Poland constitutions as examples were discussed and adopted on April 20, 1924, with some amendments in some articles.
Parliament holds legislative and executive powers
The 1924 Constitution made up of six parts and 105 articles kept the principle of national sovereignty and the assembly government system in the 1921 constitution, constituting a unity of power rather than a separation of powers. The parliament had legislative and executive powers.
The parliament was using the legislative power directly and the executive power by the "Board of Ministers," thus the government elected in the parliament. The parliament always had the authority to supervise and to give a no-confidence vote to the Board of Ministers. The executive power was made up of the President and the Ministers. Approval in the parliament was not necessary for the Ministers to be assigned, approval of the President was sufficient.
Only classical and individual rights and freedoms were listed in the constitution while no social rights were mentioned.
Not assembly government but party government
In the period until 1960 when the 1924 Constitution was in force, the actual political regime has been different from an assembly government as set forth in the constitution.
Until 1945 a single (Republican People's Party/CHP) regime prevailed. It was not the parliament but the party, especially those in the government and in the leadership of the party who had political power.
CHP's 6 principles made Constitutional provisions
1924 Constitution was amended seven times. In the first amendment made in 1928, the religious expressions in the Constitution were removed. Article 2 of the Constitution which said, "The religion of Republic of Türkiye is Islam, its official language is Turkish and its capital Ankara" was changed to, "The official language of Republic of Türkiye is Turkish and its capital is Ankara."
Women were granted to vote and to stand in elections with the amendment made in 1934.
With an amendment in 1937 six principles of CHP were made provisions in the Constitution.
Ottoman Turkish-new Turkish and vice versa
The sixth amendment made in 1945 and the one in 1952 were related with the language of the Constitution. In the first amendement the Ottoman Turkish expressions in the constitution were changed to new Turkish ones and in the next amendment they were changed back to the Ottoman Turkish ones.
The Constitution was recinded with the May 27, 1960 coup.
The definition of "Turk" discussed widely in 2011 political debates was used for the first time in the 1924 Constitution. Article 88 of this constitution said, " Everyone in Türkiye is called a 'Turk' in terms of citizenship without making any differentiation based on religion or race."
1961: Military domination or social rights?
A council of scientists were assigned witht the task of preparing the constitutional amendment immediately after the May 27, 1960 coup. The "temporary constitution" was adopted on June 12, 1960 and National Unity Committee (MBK) replaced the Parliament (TBMM).
Different from the TBMM, the sessions of the MBK were held closed and the minutes were not published. The Chair of the MBK would be elected in alphabetical order among its members and would also serve as the head of the state and hold the executive power.
Texts issued by MBK first regarded as "temporary laws" were accepted directly as "laws" after July 12, 1960. MBK decided that the draft constitution should be prepared in a Constituent Assembly where the MBK itself would also participate and then a referendum to be held on it. The Constitution on which a referendum was held on July 9, 1961 and adopted with a 61,5 % vote in favor became the "Constitution of Republic of Türkiye" according to article 157 in it.
With the meeting of TBMM on October 25, 1961 after the elections held on October 15, 1961 the MBK regime came to an end.
The 1961 Constitution made up of 157 articles and 11 provisional articles is regarded as "democratic and progressive" compared to the others in relation to social and trade union rights. The changes made in the constitution were related more to the internal structure of the parliament and its authorities.
Judicial bodies regulated
The executive body in the 1961 Constitution was the President and the Board of Ministers constituting of the Prime Minister and the Ministers.
A significant novelty this constitution brought was the Supreme Council of Judges. 1961 Constitution also regulated supreme courts such as the Court of Cassation, the State Council, the Military Court of Cassation and the Court of Jurisdictional Disputes.
Another important new aspect of the 1961 Constitution was the establishment of a Constitutional Court with the duty of examining the conformity of the laws with the Constitution.
General Staff subordinate to Prime Minister
The Constitution defined the state, in its second article as "based on human rights." With this provision, the state was accepting "the human as the basic value" and finding its reason for being in "protecting and realizing human rights".
The 1961 Constitution also opened the way for settling of "military domination." The General Staff, subordinate to the Minister of Defense before was de-regulated with article 110 of the 1961 Constitution which said, "The Chief of General Staff is assigned by the President upon the proposal of the Board of Ministers, the duties and responsibilities of the Chief of Staff are set forth by law. The Chief of General Staff is responsible to the Prime Minister for these duties and responsibilities."
"Social state"
Another novelty in the Constitution was that being a "social state" was added among the basic characteristics of the Republic of Türkiye. This principle of a "social state" was different from the state regime granting only individual rights as it was in the 1924 Constitution.
The 1961 Constitution included basic rights and freedoms in working life such as granting the workers the right to form trade unions in article 46, and the right to "collective agreement and strike" in article 47. This was the first time that trade unions, collective bargaining, and strike rights were guaranteed in the constitution.
Again it was accepted that the right to private ownership and the right to private entrepreneurship could be limited for the benefit of the public and land distribution to the farmers was envisaged without dropping agricultural production.
1982: "the amendment of which cannot be proposed"
After the 1921, 1924, and 1961 constitutions, came the "longest and most detailed," the 1982 Constitution.
The military regime continued for more than three years after the September 12, 1980 coup. The Parliament was closed, the immunities of the MPs were lifted, basic rights and freedoms were suspended and martial law was declared in the whole of the country.
Those who made the coup were named the National Security Council (MGK) and a General Secretariat was established for it. The executions of the council were given numbers under the names of "laws, bylaws, notifications, decisions." MGK appointed the retired admiral Bülend Ulusu as Prime Minister and established a new government.
Military "Constituent Assembly"
MGK established a Constituent Assembly with a law adopted by itself on June 29, 1981, in which the council itself was to participate with the authorities of the TBMM and the senate.
This Constituent Assembly was made up of two wings. The first wing was made up of a supervisory body and MGK. The second wing was a Supervisory Assembly appointed by the military government.
The Supervisory Assembly was to establish the draft of the Constitution and the MGK was to shape its final version. Meeting first on October 23, 1981, the Supervisory Assembly established a 15-person Constitution commission and invited various institutions (universities, trade unions, supreme courts, etc.) to submit their opinions about the constitution.
"Draft was ready in the Council"
However it was revealed in the "Memories" of the Chief of General Staff of the time who headed the coup that the constitution draft was already at the hands of the Council despite all these invitations made. It is written in his memories that "the draft constitution was more or less ready at the General Secretariat (of the Council/MGK) before the Supervisory Assembly started its evaluations of the Constitution."
The draft constitution submitted to the Supervisory Assembly on July 17, 1982, was approved here.
Law on Political Parties and Election Law
The Supervisory Assembly also prepared the law on political parties and the elections law at the constitution commission later. These drafts were given their final versions in MGK. The Supervisory Assembly was to be terminated before the general elections were held according to the new constitution on October 14, 1982.
The draft constitution approved by the Supervisory Assembly was given its final shape by the MGK chaired by Evren.
The article opening the way for Kenan Evren to be the president, the article making the MGK members the Presidency Council members in the new period, and the articles banning the old politicians from returning to politics were all prepared here.
Decision number 79 of the MGK was announced before the constitution was put on the referendum. "The citizens other than those banned from politics would be able to make public their opinions on the constitution draft."
Those who did not vote in the referendum would be banned from voting and from standing in elections for 5 years.
It was not known what would happen if the draft was not approved in the referendum.
Voting "No" would result in supporting the uncertainty in the country and the military regime to continue.
91.37 percent "yes" in referendum
The constitution text was put to a referendum on November 7, 1982, and entered into force with a 91.37 percent majority.
In the 1961 Constitution, there was an article saying "the constitutional provision stating that the regime of the state is a Republic cannot be amended and its amendment cannot be proposed." In the 1982 Constitution, the number of "unamendable" articles was increased.
More "unamendable" articles
The following articles were made "unamendable:"
Article 1. Republic of Türkiye is a Republic.
Article 2. The Republic of Türkiye 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.
Article 3. The State of Türkiye, 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.
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 may not be amended, nor may their amendment be proposed.
"A state respecting human rights"
The Republic of Türkiye 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" according to the 1982 Constitution.
The legislative body identified in part 3 of the Constitution is the Turkish Grand National Assembly (TBMM). The Republic Senato established in the 1961 Constitution was abolished with the 1982 Constitution and again a single assembly parliament was established named TBMM.
Article 9 says that "jurisdiction power is used by independent courts in the name of the Turkish nation," and article 142 says that the establishment, duties and powers of the courts and the rules of procedure are determined with laws.
While the 1961 Constitution was stating a "state based on human rights," the 1982 Constitution uses the expression of "a state respectful of human rights."
The 1982 Constitution limited the basic rights and freedoms while asserting "powerful execution."
80 articles of 1982 Constitution changed
80 articles of the 194 article 1982 Constitution were changed; 2 of the 3 provisional articles were deleted.
Provisional article no. 4 banning political parties and their leaders from politics was abolished in 1987. The old political parties could be re-opened and their leaders could return to politics.
Right to open radios & TVs and privtiization
On July 8, 1993, it became possible to found radio and television channels with an amendment made in article 133 of the Constitution.
The concept of "privatization" entered the Constitution with an amendment made in article 143 on June 18, 1999.
2001 amendments
In 2001 the Preamble, 32 articles, and a provisional article of the 1982 Constitution were amended. With this most comprehensive amendment in the constitution, 35 amendments were made.
Deputy Prime Ministers were included as a member of the National Security Council, ⅗ majority was brought for general amnesty or pardon decisions, foreigners were given the right to petition, ⅗ majority was made necessary at the Constitutional Court in order to cancel any amendments in the constitution.
Death penalty abolished
Closing of political parties was made more difficult and it was envisaged that the Constitutional Court could decide for depriving a political party totally or partially of public financial assistance instead of closing the party.
The death penalty was abolished with an amendment in article 38 on May 7, 2004.
2007 referendum: President to be elected
With the referendum on October 21, 2007, some constitutional amendments were made the most important of which was that the president would be directly elected, instead of elected in the parliament.
The amendments were approved in the referendum with 68,95 percent Yes and 31,05 percent No votes.
2010 referendum: Provisional article 15 removed
In May 2010, another set of constitutional amendments was put on a referendum by President Abdullah Gül.
The amendments included changes in the structure of the Supreme Board of Judges and Prosecutors (HSYK) , establishment of Obdusman, opening the High Military Council and HSYK decisions to judicial review, and narrowing of the scope of military jurisdiction.
The result of the referendum held on September 12, 2010 was 57,93 percent Yes and 42,07 percent No. The provisional article 15 preventing the putschists to stand trial was also deleted. The two suspects of the September 12 case who were still alive, Kenan Evren and Tahsin Şahinkaya stood trial, the verdicts were announced and both were given life sentences on June 18, 2014, but by that time both had already died.
2017 referendum: The Presidential system
With a referendum held on April 16, 2017, the "Presidency government system" was established. The seat of the Prime Minister was abolished and the President was made both the head of the state and the government.
The President was given the authority to appoint and to take from duty vice presidents and ministers. Again the President was given the authority to put on referendum laws amending the constitution and to issue "presidential decrees" regarding issues concerning execution.
It was also regulated that the president to be elected need not stop to be a member of a political party.
3/5 majority will be sought in the Parliament for the President to be investigated about any allegation of a crime and a two-thirds majority will be sought for her/his trial in the Supreme Court.
The President was given the right to determine the procedures and principles for assigning of high public officials and also the right to decide on the establishment of and set the duties, authorities and responsibilities or the public institutions and bodies in the scope of the central administration.
The number of seats for MPs was increased from 550 to 600. The period between the elections was increased to 5 years from 4 years. (AS/PE/VK)
