AYŞENUR ÇAKAR CONSTITUTONAL LAW – 2.

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CONSTITUTON-MAKING

There has been much concern with constitutions and constitution-making in the last three to four decades.

1. After a revolution and a coup.

In Russia after 1917 Revolution, In China 1949
2. Changing the border after the war.
Czechoslovakia and Yugoslavia after First World War
3. When the new states are founded.
Bulgaria, Greece, Syria after the Ottoman Empire.
4. Changing the structure of the state
- Unitary state become a federal state
(Zanzibar + Tanganica = Tanzania 1964)
- Federal state become the united states
(Yugoslavia, Union of SSR)
- Monarchy converted to the republic
(Italy, Greece, Turkey, Iran)
5. Normalisation of the political systems.
- War, revolution, military coup, changing the structure of state are abnormal situations.
- Constitutions made in the abnormal situations, neat to change in the normal situations.
 Italy after Fascism in 1947, Germany after Nazism in 1949
 Russia after Communism in 1993, Egpyt after Mubarek
 After the military coups Turkey is still trying to make a normal constitutions

The variety of contexts in which constitutions have been made shows that the primary purposes a constitution
serves vary considerably:

John Elster (1995) describes seven waves of constitution making following the US Declaration of Independence
in 1776

 During 1780-91 the US, Poland and France adopted new constitutions, as did Sweden in 1809 and
Norway in 1814.
 Following revolutions in Europe in 1848 several countries adopted new constitutions some of which
did not fast long because the revolutions producing them were suppressed.
 After World War I (1914-18) Poland, Czechoslovakia and defeated Germany passed new constitutions.
 After World War II (1939-45) Italy, Germany and Japan had new constitutions essentially dictated to
them by the victors.
 As the sun set on the colonial empires of the UK, France and others after 1945, new constitutions in
Asia and Africa.
 Authoritarian regimes in Southern Europe were driven from power in 1974-78 and Greece, Portugal
and Spain adopted new democratic constitutions.
 The seventh and last wave swept East and Central Europe after the collapse of communism beginning
in 1989, with about 25 new constitutions, all except Hungary (until 2012)

The world order has changed a great in this time;

- The final mopping-up colonialism, with the emergence of new states,

- The end of military regimes,
- The collapse of communism,
- And efforts end civil conflicts, particularly in multiethnic states, have all contributed to the
production of constitutions.

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 Nation building as a new state emerges;

 The consolidation of democracy as the military retires to the barracks or authoritarian presidents are
deposed;
 Liberalism and the creation of private markets with the end of communism;
 Peace and cooperation among communities to end internal conflicts.

In the narrow, formal, sense, the Constitution is the written constitutional text adopted by the original
constituent power, sometimes referred to as the “founders” or “founding fathers”.

In constitutional jurisprudence, this term “constituent power” is associated with the power of making a new
constitution.

Constituent includes the power not only “to frame” but also “to alter” a political constitution.

CONSTITUENT POWER

Constituent power is the power to establish the constitutional order of a nation. The definition of constituent
power is among the most elusive terms within constitutional theory.

It is often argued that the concept of constituent power is relatively modern, emerging is relatively modern
emerging almost simultaneously in French and North America revolutionary thinking.

Contrary to constituted powers, constituent power is free and independent from any formal bonds of positive
law created by the constitution.

The constitution power establishes the constitution, which in turn regulates the ordinary constituted powers,
such as the executive, legislative and judiciary, which govern every-day political life.

AMENDING POWER

Latin “amender” means to correct.

Amendment is a change in some of the existing provisions on a constitution to make it more complete or more
effective.

It operates within the theoretical parameters of the existing constitution.

The amendment power is unique because of, inter alia, its remarkable capacity to reform governmental
institutions; yet it is still a legal competence defined in the constitution and subject to constitutional limits.

For political scientists such as Carl Friedrich, constituent power is not a de jure power but a de facto power. It is
not based on a prior legal norm, hence, it is unlimited, independent and unconditional, and in that respect,
original. In contrast, amending power (the constituted power), while performing the same function of
establishing constitutional laws, iş a constraint power that acts according to the formal procedures as
established in the constitution.

 Constitutions are made by the special conventions are called “founder political power”.
 “Founder political power” regulates the procedure of changing the constitution.
 When it is necessary
- Who is going to change the constitution?
- How is the constitution going to be changed?
 Normally constitutions are changed by parliaments.

 Inflexible constitutions are changed in special procedure.

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-In some countries changing procedure of constitution is stated by a special conventions and
completed by the parliaments (ABD)
 Some constitutions have irreversible (unchangeable) provisions.
-Italy, Portugal, Iran, Turkey, Germany

CONSTITUTION CHANGING PROCEDURE

Constitution changing procedure is realised in three stages:

1. Proposal
2. Decision
3. Approval

Proposal Stage

- In Turkey only members of parliament (1/3 National Assembly)

- In America only members of Congress (2/3 National Assembly)
- In Poland 1/5 of National Assembly
- In Romania ¼ of National Assembly
- In France members of parliament and president
- In Switzerland 100 thousands of elector people give proposal of change.

Decision Stage

Changing of the constitutions are negotiated in the parliament different from the ordinary acts.

- Ordinary acts are negotiate ones, constitutions negotiated twice

In Italy second negotiation is made at least 3 months later.
In Turkey second negotiation is made at least 2 days later.
- Constitution changing needs different decision quorum.
In Italy quorum is the absolute majority of National Assembly.
In Germany, Portugal, Japan 2/3 of National Assembly
In Turkey and Spain at least 3/5 of National Assembly
 If president sent back to parliament, decision quorum is 2/3 of National Assembly.

Approval Stage

- Approval stage of changing constitution is too complicated

- Normally parliaments sent the changed act to president.
After the signature of president or king the change become valid.
In some countries presidents have right either send back to the parliament or submit to a
plebiscite-referendum.
 When president sends back, parliaments need different decision quorum.
- In Turkey 2/3 majority of National Assembly
 In some countries president have absolute power of veto
- In Denmark and Holland
 In some countries plebiscite necessary (Switzerland, Denmark, Holland)
 In some countries submit a plebiscite is discretation of president (Turkey)

CONTENT OF CONSTITUTIONS

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Democratic constitutions content two main sections:

1. Establishments, functions and relationships of the governmental institutions, sections.

2. Safeguarding the basic rights and freedoms of individuals section.

Democratic constitutions as systematic codes consist of five parts:

1. Preliminary chapter
2. General principles chapter
3. Rights and freedoms chapter
4. Institutions of the state chapter
5. Effectiveness and changing chapter

All constitutions of the world are approximately contain these five chapters.

1. PRELIMINARY CHAPTERS

Preliminary chapters are the ideological part of the constitutions.

- Explain why the constitution has been made.

- It is not written in the form of an article, but history and politics.
- It is controversial, is the preliminary chapter inside the constitution or not.
- Some constitutions haven’t got preliminary chapter (Finland, Italy, Norway, Romania)
- Some constitutions have got very short preliminary chapter (France, Germany, Ireland)
- If the state has an official ideology preliminary chapter is long. (Iran, China, Turkey)

2. GENERAL PRINCIPLES

General principles regulate the main structures of the state.

- Unitary or federal state

- Monarchy or republic state
- Secular or religious state
- Capital city of the state
- Official language and the symbols of the state
- Owner-holder of the sovereignty
- Main principles of the organs and functions of the state
- Fundamental aims and duties of the state

3. RIGHTS AND FREEDOMS

Rights and freedoms is longest part of the democratic constitutions. Because, the aims of the constitutional
movements are safeguarding the rights and freedoms of the individuals against the power of the state.

- Italian Constitution 40 articles

- Poland Constitution 56 articles
- Russian Constitution 43 articles
- Turkish Constitution 62 articles
- French Constitution hasn’t got a special part of rights and freedoms chapter.
According to preliminary chapter, “1789 Human and Citizens Rights Declaration” is part of the
French Constitution.
- Authoritarian and the totalitarian constitutions haven’t got the rights and freedoms chapters.

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4. INSTITUTIONS OF STATE CHAPTERS

Institutions of state chapters regulate the legislative, executive, judicial institutions of the state and their
functions.

For example;

- Structures, powers and duties of the parliament

- Procedure of legislation
- Structure, powers and duties of the government
- President, prime minister and the government
- Structures and the duties of the law courts
- Court of the first instance and the higher jurisdiction
- Independency and the legal guaranty of judges
- Relationships of the state institutions
- Elections of the central and the local governments

5. CHANGING OF CONSTITUTION

Effectivness and changeging chapter regulates the effectiveness method and the validity date of the
constitutions.

- Regulates the transitional period of constitutions.

- Regulate the changing method of the constitution