Turkish Constitution and Political struture of Turkey

[The Star]

DEVELOPMENT OF CONSTITUTIONAL MOVEMENTS IN TURKEY

The Ottoman Empire was among the first nonWestern nations to establish a constitutional government. Constitutional movements in the Ottoman Empire, which began during the second half of the 19th century, can be characterized as the product of the following developments: the decline of the Ottoman societal system, influence of the Western European socioeconomic and political developments and emergence of an enlightenment age in the Ottoman Empire. They were topdown constitutional movements in contrast with those of the Western countries.

Two major steps toward a constitutional government were the Rescript of Tanzimat of 1839 and that of Islahat of 1856. The rescripts were unilateral declarations and recognition by the Sultan of certain basic human rights. These rescripts also paved the way for the promulgation of the first Ottoman Constitution in 1876. The 1876 Constitution provided certain mechanisms checking the absolute power of the Sultan by creating a legislative assembly partially elected by the people. In 1909, the 1876 Constitution was substantially amended to increase the powers of the legislature and to restrict those of the Sultan for developing a democratic monarchical political system similar to that of the Western European societies.

The 1921 Constitution established during the War of Independence included rules necessitated by the conditions and requirements of war. It proclaimed the principle of "national sovereignty" as an expression of the radical revolutionary transformation in the Turkish society by establishing the constitutional principle that the Grand National Assembly is the sole and true representative of the nation. For realizing this purpose, it established an assembly government system in which all the powers of sovereignty were embodied in the parliament.

1924 Constitution

The Republic of Turkey adopted its first constitution in 1924. It retained the basic principles of the 1921 Constitution, notably the principle of national sovereignty. As in the 1921 Constitution, the Turkish Grand National Assembly (TGNA) was considered to be the "sole representative of the nation." The 1924 Constitution provided for a continuation of the parliamentary system. Both the legislative and executive powers were embodied in the Assembly. Although the Assembly had the power to supervise and dismiss the Government, neither the Government nor the President had the authority to dissolve the parliament. The 1924 Constitution can be characterized as a step toward a parliamentary system. The Assembly was able to exercise executive power through the President and the Council of Ministers. In other words, there was a clear separation of powers. Meanwhile, the collective responsibility of the ministers before the Assembly was also adopted. The principle that the President must not bear any political responsibility was another feature of the 1924 Constitution. The judiciary was totally separated from the legislative and executive bodies. Judicial power was to be exercised by independent courts on behalf of the nation.

1961 Constitution

The second constitution of the Republic of Turkey was adopted in 1961. In its macrosocietal dynamics, the 1961 Constitution represents a positive response to the influence of the rising tide of the left and social state in the world and the semiindustrialized status of economy in Turkey. Consequently, it established a constitutional system within the framework of social state, rule of law and a parliamentarian democratic governmental system.

The 1961 Constitution introduced a bicameral parliament. The National Assembly, one of the parliamentary chambers, consisted of 450 deputies elected by universal suffrage. The other chamber known as the Senate of the Republic, included 150 members elected by universal suffrage. Additionally it would include 15 members appointed by the President, members of the Committee of National Unity that seized power on May 27, 1960, and former presidents. The National Assembly had the final say in the lawmaking process.

In the exercise of executive power the President symbolically represented the unity and integrity of the State. The Prime Minister and the Ministers made up the Council of Ministers, who bore political responsibility for the use of this power.

The 1961 Constitution fully separated the judiciary, the executive and the legislative branches under the principle of the separation of powers. In this system, details regarding the security of judges, as well as matters related to the full freedom and independence of the courts, and the positions of the judges and public prosecutors were turned over to the "High Council for Judges and Public Prosecutors." Furthermore, the concept of the "Constitutional Court" was first introduced with the 1961 Constitution in accordance with its aim of establishing a fully developed concept of the rule of law.

1982 Constitution

The third constitution of the Republic of Turkey, in effect today, was adopted in 1982. According to the 1982 Constitution, unconditional and unrestricted sovereignty is vested in the nation. It has been stipulated that the TGNA can convene with onethird of the total number of members to prevent parliamentary deadlocks. The TGNA can make decisions with an absolute majority of those present; however, the quorum for decisions can, under no circumstances, be less than a quarter plus one of the total number of members. The fundamental change in the legislature by the 1982 Constitution was the abolition of the Senate of the Republic. While executive functions are carried out by the President of the Republic and the Council of Ministers, judicial power is exercised by independent courts. Article 2 of the Constitution describes the Republic as a democratic, secular and social state governed by the rule of law.

The Constitution states that all Turkish citizens are united in national honor and pride, national joy and grief, their rights and duties towards the national entity, blessings and burdens, and in every manifestation of national life. The Constitution stipulates that the Republic of Turkey is committed to the nationalism of Atatürk. It also states that the Turkish State is an indivisible whole with its territory and nation. Democracy is obtained and preserved through state administration's adherence to law which limits the legislative and executive powers and provides a balance between the three powers.

Judicial review of administrative acts and the constitutionality of the laws are considered sine qua non for the rule of law. Further safeguards for the rule of law in the 1982 Constitution are the nonretroactivity of criminal laws, the legal judicial process and the prohibition of the denial of justice. Furthermore, the hierarchy of norms was adopted, preventing the lowernorms from being violated by the uppernorms. Constitutional Court decisions are binding for the legislative, executive and judicial branches, the government, all real persons and corporate bodies.

In addition, the 1982 Constitution recognizes all basic human rights such as freedom of speech, press, communications, travel, right to privacy, right to property. The fundamental social rights recognized by the Constitution are the right to organize unions, the right to strike and to collective bargaining, the right to social security, the right to education and the right to medical care.

The Turkish Grand National Assembly (TGNA) enacted the most comprehensive amendments to the Constitution on October 3 since it was drafted on November 7, 1982. With this amendment package, covering 34 articles, the Constitution was revised extensively in an effort to extend basic rights and freedoms, re-regulate social and economic life. The amendments went into effect after they were published in the Official Gazette on October 17.



BASIC ORGANS OF THE STATE

LEGISLATURE

Legislative authority is vested in the Turkish Grand National Assembly (TGNA). The TGNA is composed of 550 deputies. Parliamentary elections are held every five years. Deputies represent the entire nation and before assuming office, take an oath, the text of which is included in the Constitution.

The duties and authority of the TGNA are outlined as follows: to adopt, amend and abrogate laws, to supervise the Council of Ministers and ministers, to give authority to the Council of Ministers to pass decrees with the power of law, to adopt the budget and final account draft laws, to ratify the printing or minting of currency, to make decisions for declaring war, martial law or emergency rule, to approve the signing of international agreements and to make decisions for declaring general or special amnesties.

EXECUTIVE

The executive branch in Turkey has a dual structure. It is composed of the President of the Republic and the Council of Ministers.

The President

The President of the Republic is the Head of the State. He/she represents the Republic of Turkey and the unity of the Turkish nation. The President is elected for a sevenyear term by a twothirds majority of the full membership of the TGNA. Turkish citizens of at least forty years in age can be elected President by the TGNA's secret ballot process. They can be either deputies who have received a higher education or those who are qualified to be elected as a deputy. A President cannot be elected for a second term in office.

The President of the Republic has functions and authority related to the legislative, executive and judicial fields. His/her functions in the legislative fields are to convene the TGNA when necessary, to publish laws and when deemed necessary, to send them back to the Parliament for discussion, to hold a referendum in Constitutional amendments when he/she considers it necessary, to file suit with the Constitutional Court claiming a violation of Constitutional law, to issue decrees with the power of law and regulate the internal workings of the Parliament and to decide when new TGNA elections are necessary. The executive duties of the President are: to appoint or accept the resignation of the Prime Minister, to appoint or dismiss Ministers in the event that he deems it necessary, to chair meetings of the Council of Ministers or summon the Council to meet under his chairmanship, to appoint accredited envoys to represent the Turkish State abroad and receive representatives of foreign states, to ratify and publish international agreements, to act as the CommanderinChief of the Turkish Armed Forces, to appoint the Chief of General Staff, to convene the National Security Council and to chair meetings of the Council, to proclaim martial law or impose a state of emergency by a decree to be decided by the Council of Ministers meeting under his chairmanship, and to issue decrees with the power of law, to approve decrees as signatory, to commute or pardon the sentences of certain convicts on the grounds of old age, chronic illness or infirmity, to appoint the members and President of the State Auditory Council, to conduct investigations, enquires and research through the State Auditory Council, to select the members of the Higher Education Council, and to appoint University Chancellors. Duties and authority of the President related to the judiciary are to appoint: members of the Constitutional Court, one fourth of the members of the Supreme Court of Appeals, members of the Supreme Military Appeals Tribunal, members of the Supreme Council of Judges and Public Prosecutors.

No appeal may be made to any legal body, including the Constitutional Court, against decrees and presidential orders signed directly by the President of the Republic.

The President of the Republic may be impeached for high treason.



The Presidents of the Republic of Turkey:

· Mustafa Kemal Atatürk
(October 29, 1923 November 10, 1938)

· İsmet İnönü
(November 11, 1938 May 22, 1950)

· Celal Bayar
(May 22, 1950 May 27, 1960)

· Cemal Gürsel
(May 27, 1960 March 28, 1966)

· Cevdet Sunay
(March 29, 1966 March 28, 1973)

· Fahri Korutürk
(April 06, 1973 April 06, 1980)

· Kenan Evren
(September 18, 1980 November 08, 1989)

· Turgut Özal
(November 09, 1989 April 17, 1993)

· Süleyman Demirel
(May 16, 1993 May 16, 2000)

· Ahmet Necdet Sezer
May 16, 2000



Prime Minister and the Council of Ministers

The Council of Ministers consists of the Prime Minister, designated by the President of the Republic from members of the TGNA, and various ministers nominated by the Prime Minister and appointed by the President of the Republic. Ministers can be dismissed from their duties by the President or upon the proposal of the Prime Minister when deemed necessary.

When the Council of Ministers is formed, the government's program is read at the TGNA and a vote of confidence is taken. Members of the Council of Ministers are responsible for the execution of general policies. The Ministers assume two kinds of political responsi*bilities. First is responsibility for the general policy of the government, shared equally by all ministers. Second, each minister is individually responsible for matters within the jurisdiction of his/her own ministry and for the acts of his/her subordinates.

The fundamental duty of the Council of Ministers is to formulate and to implement the internal and foreign policies of the state. The Council is accountable to the Parliament in execution of this duty.

The Constitution also includes national defense in the section related to the Council of Ministers. The Office of the CommanderinChief, the Office of the Chief of the General Staff and the National Security Council form the authorative organizations for national defense.

The National Security Council consists of the Prime Minister, the Chief of the General Staff, the Minister of National Defense, the Minister of Interior, the Minister of Foreign Affairs, the Commanders of the Army, Navy and the Air Force and the General Commander of the Gendarmerie. The NSC makes decisions related to the determination, establishment and application of national security policy. The Council of Ministers gives priority to National Security Council decisions where measures deemed necessary for the preservation of the existence and independence of the state, the integrity and indivisibility of the country and the peace and security of the society are concerned.

THE COUNCIL OF MINISTERS

Prime Minister Recep Tayyip ERDOĞAN

Minister of Foregin Affairs

and Deputy Prime Minister Abdullah GÜL

Minister of State and

Deputy Prime Minister Abdullatif ŞENER

Minister of State and

Deputy Prime Minister Mehmet Ali ŞAHİN

Minister of State Ali BABACAN

Minister of State Mehmet AYDIN

Minister of State Beşir ATALAY

Minister of State Nimet ÇUBUKÇU

Minister of State Kürşat TÜZMEN



Ministers
Agriculture and Rural Affairs Mehmet Mehdi EKER

Culture and Tourism Atilla KOÇ

National Defense Vecdi GÖNÜL

National Education Hüseyin ÇELİK

Energy and Natural Resources Hilmi GÜLER

Finance Kemal UNAKITAN

Forestry and the Environment Osman PEPE

Health Recep AKDAĞ

Public Works and Housing Faruk ÖZAK

Industry and Trade Ali COŞKUN

Interior Abdülkadir AKSU

Justice Cemil ÇİÇEK

Labour and Social Security Murat BAŞESGİOĞLU

Transportation Binali YILDIRIM

Duties and Responsibilities of the Prime Minister

The Prime Minister is responsible for ensuring the Council of Ministers functions in a harmonious manner. He/she supervises implementation of government policy. The Prime Minister is the de facto head of the executive branch. Each Minister is accountable to the Prime Minister who in turn ensures that Ministers fulfill their functions in accordance with the Constitution and its laws.

The Administration

The administration entity, its structure and functions, is regulated by law. The organization and functions of the administration are based on the principle of centralization and local administration.

Central Administration

Turkey is divided into provinces based on geography, economic conditions and public service requirements. Provinces are further divided into administrative districts.

Local Administrations

Local administrative bodies are public entities established to meet the common needs of the local inhabitants of provinces, municipalities, districts and villages. The decisionmaking organs are chosen by the electorate prescribed in the law. The structure of the local administrations is defined by law.

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JUDICIARY

Judicial power in Turkey is exercised by independent courts and supreme judiciary organs. The judicial section of the Constitution, with the principle of a legal state as its basis, is founded on the independence of the courts and the judges, and the guarantee of judges' rights. Judges rule on the basis of Constitutional provisions, law and jurisprudence.

The legislative and executive organs must comply with the rulings of the courts and may not change or delay the application of these rulings. Judges also assume the duties of monitoring elections.

Functionally, a tripartite judicial system has been adopted by the Constitution and accordingly, it has been divided into an administrative judiciary, a legal judiciary and a special judiciary.

The Constitutional Court, the Supreme Court of Appeals, the Council of State, the Supreme Military Court of Appeals, the Supreme Military Administrative Court and the Court of Jurisdictional Conflicts are the supreme courts mentioned in the judicial section of the Constitution. The Supreme Council of Judges and Public Prosecutors and the Supreme Council of Public Accounts are also two organizations having special functions in the judicial section of the Constitution.

HIGHER COURTS

Constitutional Court

The basic function of the Constitutional Court, established in the 1961 Constitution, is to examine the constitutionality, in both form and substance, of laws, and decrees with the power of law and the Rules of Procedure of the Turkish Grand National Assembly. Other functions of the Court are as follows:

* With the capacity of the High Tribunal, the Constitutional Court judges the following: the President, members of the Council of Ministers, members of supreme courts, the chairman and members of the Supreme Council of Judges and Public Prosecutors and of the Supreme Council of Public Accounts, the Chief Republic Prosecutors and the Deputy Republic Chief Prosecutors for crimes related to their offices.

* It audits the finances of political parties.

* It examines TGNA decisions to revoke the immunities of deputies, or to dismiss members of parliament.

* It chooses the Chairman and Deputy Chairman of the Court of Jurisdictional Conflicts.

The Constitutional Court is composed of 11 regular and four substitute members. Decisions are made when the eleven members convene. The decisions of the Constitutional Court are final. These decisions cannot be amended in any manner and their application cannot be delayed.

The Court of Appeals

The Court of Appeals is the last instance for reviewing rulings and judgments rendered by Judicial Courts, provided that they are not referred by laws to another place of jurisdiction.

It is also the first and final authority for specific cases that are defined in the law. The Court of Appeals reviews the rulings rendered by the Justice Courts, the Criminal Courts, the Examination Courts and renders verdicts upon appeal. The opinions rendered by the Court of Appeals are taken as precedents for legal rulings in the lower courts throughout the country, so that uniform application may be achieved. It is also able to modify its own ruling upon request.

The Council of State

The Council of State is the Superior Court for administrative justice and, as such, is the Court of last instance. It reviews all rulings rendered by Administrative Courts, unless the laws specifically refer them to other judicial authorities. Similar to the Court of Appeals, the Council of State is also the court of first and final instance for specific cases as defined by law. It ensures the consistency of rulings among the administrative courts.

The Council of State is the highest consultative body of the state, and in this capacity, expresses its opinions on draft legislation upon the request of the Prime Minister or the Council of Ministers. It also examines draft regulations and concession contracts. It is responsible for resolving administrative disputes.

Supreme Council of Public Accounts

The Supreme Council of Public Accounts shall be charged with auditing, on behalf of the Turkish Grand National Assembly, all accounts related to the revenues, expenditures and property of government departments financed by general and subsidiary budgets. No applications for judicial review of its decisions shall be filed in administrative courts.

Supreme Military Court of Appeals

The Supreme Military Court of Appeals is the court of final instance for all rulings and verdicts rendered by military courts. It is also a court of first and final instance with jurisdiction over certain military personnel, stipulated by law, with responsibility for any specific trials of these persons.

Supreme Military Administrative Court

The Supreme Military Administrative Court has jurisdiction over military personnel in administrative or active military service.

Court of Jurisdictional Conflicts

The Court of Jurisdictional Conflicts is the final authority to settle disputes concerning the verdicts of the Justice, Administrative or Military Courts. This court is made up of members of the Court of Appeals, the Council of State, the Supreme Military Court of Appeals, and the Military Administrative Court of Appeals.

Military Courts

Military Courts have jurisdiction to try military personnel for military offenses, for offenses committed by them against other military personnel or crimes committed in military places, or for offenses connected with military service and duties.

State Security Courts

State Security Courts were established to deal with offenses against the indivisible integrity of the State, against the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and with offenses directly involving the internal and external security of the state. The courts consist of a president, two regular members and one substitute, one chief public prosecutor and a sufficient number of public prosecutors.

The Supreme Court of Appeals is the competent authority to examine appeals against the judgments of the State Security Court.

Supreme Council of Judges and Public Prosecutors

The Supreme Council of Judges and Public Prosecutors, an independent institution, has the dual function of acting as the Supreme Council of Judges and as a reviewing body for objections. It elects the members of the Supreme Court of Appeals, the Council of State and the Court of Jurisdictional Disputes; decides whether any proposal to abolish a Court or judicial post or change the jurisdictional direction of any court is appropriate; deals with administrative matters concerning judges of the Administrative and Judicial Courts and Public Prosecutors who are not members of the Supreme Court of Appeals or the Council of State.

POLITICAL PARTIES AND ELECTION SYSTEM

In conformity with conditions set forth in the law, every Turkish citizen upon the age of 18 has the right to vote, to be elected, and to engage in political activities independently or in a political party, and to take part in referendums.

Privates and corporals serving in the armed services, students in military schools, and convicts in penal institutions cannot vote.

Elections in Turkey are single stage. According to a proportional representation system, general, equal and secret ballot elections are held throughout the country on the same day under judicial administration and supervision. The related law outlines the requirements for Turkish citizens living abroad to vote. The voter casts his vote in full freedom. The counting, recording and detailed presentation of votes are done publicly. Every province is an election area and every alderman's office is an election precinct.

According to the election law in Turkey, parties obtaining 10 percent of the votes throughout the country in general elections enter parliament.

Citizens over 18 years of age have the right to form political parties, and to join and withdraw from them in accordance with established procedure.

Judges and prosecutors, members of higher judicial organs, teaching staff at institutions of higher education, members of the Higher Education Council, civil servants in public organizations and corporations, and other public employees not regarded as workers on account of the duties they perform, students, and members of the Armed Forces, shall not become members of political parties.

Prior permission to form a political party is not required. Parties are allowed to function freely in accordance with the provisions of the Constitution and related laws which state that the internal workings and decisions of political parties must conform to democratic precepts.

A political party consists of its central organs, provincial and country organizations and the party group in Parliament. All political parties must establish headquarters in Ankara. In order to establish a political party, the signatures of at least 30 Turkish citizens, eligible for election to Parliament, are required. The highest authority within the political party is its general council. The central organization consists of the general council, the leader of the party, the central decisionmaking and executive boards, the disciplinary board and its caucus.

The Results of the General Elections (Nov. 3, 2002)


Following the November 3 elections, the Justice and Development Party (AKP) received 363 seats in the 550-seat assembly. Only one other party, the Republican People’s Party (CHP), exceeded the 10 % vote threshold to enter parliament.



The Justice and Development Party (AKP) won an overwhelming victory and thus a majority in parliament in the general elections held on November 3. At a huge celebration at party headquarters, AKP Leader Recep Tayyip Erdoğan said: "We will not waste our time showing off our victory. We will build a Turkey where common sense prevails."



While, the Justice and Development Party (AKP) has 14 female deputies, the Republican People's Party (CHP) has 12.



The Justice and Development Party (AKP) claimed victory in the November 3 elections, paving the way for Turkey’s first single-party government to assume power in over a decade. According to the official results, the AKP and the Republican People’s Party (CHP) were the only two parties out of 18 to attain the 10 % threshold required to enter parliament. In addition, nine independent candidates won seats in parliament. Some 10 million of Turkey’s total 41.5 million voters did not cast their ballots in the elections. The AKP won 34.29 % of the votes, which amounts to 363 seats in parliament, while the CHP won 19.38 % of the votes, winning 178 seats. Meanwhile, the three coalition parties of the current government were all defeated, with the senior Democratic Left Party (DSP) getting 1.22 %, the Motherland Party (ANAP) 5.13 %, and the Nationalist Action Party (MHP) receiving 8.36 % of the votes. Tansu Çiller’s center-right True Path Party (DYP) hovered just below the 10 % threshold with 9.54 % of the votes.


On November 10, the Supreme Election Board (YSK) announced the official results of the November 3 general elections. According to the official results, 32,768,161 out of 41,231,967 voters cast their ballots in the elections. A total of 31,528,783 votes were considered valid. The YSK announced that the Justice and Development Party (AKP), which received 10 million 808 thousand 229 votes, and the Republican People's Party (CHP), which won 6 million 113 thousand 352 votes, were the winners in the elections.



On November 21, independent Elazığ Deputy Mehmet Ağar joined the True Path Party (DYP). With this action, the DYP has become the third party represented in parliament, along with the ruling Justice and Development Party (AKP) and the opposition Republican People’s Party (CHP).
Vote of confidence


On November 16, President Ahmet Necdet Sezer gave the mandate to Abdullah Gül, Deputy Chairman of the AKP, in order to set up the new government. Abdullah Gül announced his cabinet on November 18. President Ahmet Necdet Sezer approved the list of ministers for the 58th Cabinet headed by Prime Minister Abdullah Gül. The list consists of 25 ministers, all of them deputies from the ruling Justice and Development Party (AKP).



Founded only one year ago, the AKP faces a court case, which could outlaw it. In addition, its leader has been banned from assuming a government post by the courts. AKP Leader Recep Tayyip Erdoğan is banned from becoming a parliamentarian and prime minister due to his still continuing five-year ban from politics after being convicted of inciting hatred among religious groups.



Members of the AKP government took office on November 19 after hand-over ceremonies in ministries. The program of the government was read out in the session of Parliament on November 23, debates on the program were held on November 26 and the new government received a vote of confidence from Parliament on November 28, two days after the completion of debates on the program.



Local Elections

Elections for local administrations are held every five years. Byelections are held in the following cases: if elections in an electoral region are cancelled due to procedural irregularity; if a provincial assembly or a city council is dissolved by the competent authority; if the majority of seats in a provincial assembly or a city council is vacated for any reason; and if, for whatever reason, the mayoralties are vacated. All Turkish citizens 25 and older can be elected mayor or become a member of provincial assemblies and city councils providing the following conditions are fulfilled: all candidates must have completed primary school education, have full legal rights, have completed military service, have no prison record of one year or more, must not have been convicted of embezzlement, corruption, bribery, theft, fraud, forgery, breach of trust or fraudulent bankruptcy, or of smuggling, conspiracy in official biddings or purchases, offenses related to the disclosure of state secrets, involvement in ideological and anarchistic activities, or incitement and encouragement of such activities. Furthermore, a candidate must have resided in the electoral area for at least six months.

In local elections, a proportional representation system, based on a ten percent barrier, is implemented for membership to provincial assemblies and town councils. For mayoral posts the simple majority system is used. In electing members of the provincial assemblies, each administrative district is an electoral region. In elections for mayoral posts and city council members, each city is an electoral region. Voters elect a metropolitan mayor in cities comprising an electoral region of more than one administrative district. Votes are cast in metropolitan areas also for mayoral and city council posts in each administrative district.