İSTANBUL

İSTANBUL ÜNİVERSİTESİ
ÜNİVERSİTESİ İŞLETME EĞİTİM
AÇIK VE UZAKTAN FAKÜLTESİ
FAKÜLTESİ

TİCARET HUKUKU ANABİLİM DALI

BASIC CONCEPS OF LAW

DR. ÖĞR. ÜYESİ ARİF AYLUÇTARHAN

 TURKISH CONSTITUTIONAL LAW

•Definition of the Constitution

•Types of Constitution

•Constitutional Legislations

•1982 Constitution and Features

•Fundamental Rights and Freedoms

•Amendment of the Constitution

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5.1. Definition of the Constitution
The Constitution is a set of rules that show the structure of the state,
the form of government, its organs, the relations between these
organs, and guarantee the fundamental rights and freedoms of
individuals.

It is the highest legal norm within the hierarchy of norms.

Other legal rules should be in accordance with the Constitution.

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5.2. Types of Constitution
5.2.1. Written Constitution-Unwritten Constitution

Constitutions are often written.

The constitutions that have been made since the American

Constitution of 1787 are the written constitutions written as a
text.

However, there are also unwritten constitutions. For example,

since there is no written constitution in UK, the issues related to
the establishment of the state and the organs of the state are
regulated not by the written constitution, but by customs.

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5.2. Types of Constitution
5.2.2. Flexible and Inflexible Constitutions
Constitutions are divided into two as flexible and inflexible constitutions,
depending on the supremacy of the constitution, the existence of
unchallengeable articles, the construction of the constitution and the form
and method of the constitutional amendment.

Flexible constitutions are constitutions made by the procedure

followed in the making of laws.
These are constitutions that can be made without the need for any qualified
majority.
The British constitution, a traditional or conventional constitution, is a
Flexible constitution.

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5.2. Types of Constitution
5.2.2. Flexible and Inflexible Constitutions
Qualified majority is sought in constitutional amendments in Inflexible
constitutions. For example, according to Article 175 of the 1982 Turkish
Constitution, a 3/5 majority is sought for the Constitutional amendment.
Another feature that makes a constitution a solid constitution is that it contains
unalterable articles.
Some constitutions have made the constitution Inflexible by forbidding the
amendment of the constitution for a certain period after the enactment time. For
example, the Greek Constitution of 1975 banned the amendment of the
Constitution in the first five years.
Written constitutions are generally Inflexible constitutions.

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5.2. Types of Constitution
5.2.3. Framework Constitution-Casuistic Constitution

The framework constitution is a abstract and short constitution that
regulates only the basic principles. The 1787 American
Constitution consists of 7 articles.
 The Casuistic constitution is the detailed constitution. Constitutions made
by the Casuistic method did not hesitate to regulate even the work of the
lawmaker, they were not content with organizing the basic principles. For
example, the Constitutions of 1961 and 1982 are Casuisticconstitutions.

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5.3. Constitutional Legislations
• The concept of the constitution was first used in the late 17th
century. Constitutional legislations started with the American
Constitution of 1787.
• Following this, the French constitution of 1791 was made.
• After the French constitution, the constitution structure
gained momentum and the Constitution of Sweden in 1809 in
Europe, Spanish in 1812, Norway in 1814, Belgium in 1831,
Swiss and Italian Constitutions in 1848 followed them.

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5.3. Constitutional Legislations

In the Ottoman Turkish Constitutional development, the first

constitution is the Law of 1876 dated(Kanun-u Esasi).

This was followed by the 1921 Constitution, then the 1924

Constitution, the 1961 Constitution and the 1982 Constitution
were made during the republic period.

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5.4. 1982 Constitution and Features
5.4.1. Enactment and Enforcement

• The National Security Council (MGK), which was established after the Turkish
Armed Forces seized power on September 12, 1980, formed the constituent
assembly (Kurucu Meclis) responsible for preparing a new constitution with the
Law No. 2485 on the Constituent Assembly on 29 June 1981.
•
According to the 1st article of this Law; The Constituent Assembly consists of
the National Security Council (MGK) and the Advisory Assembly (Danışma
Meclisi).

• The Advisory Council first elected a "Constitutional Commission" consisting of

15 members among its members; This Commission started working on
November 23, 1981 and submitted its draft Constitution to the Advisory
Council on July 17, 1982.

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5.4. 1982 Constitution and Features
5.4.1. Enactment and Enforcement
• After the negotiations, the Advisory Council accepted the draft on
23 September 1982 and sent it to the NSC; The NSC also
accepted the draft on October 18, 1982 and published it in the
Official Gazette dated October 20, 1982 and numbered 17844 to
be presented to the public.
• As a result of the public vote on 7 November 1982, the draft
constitution was adopted with the vote of 91.37% yes and 8.63%
no.
• The Constitution, which was accepted by the public in this way,
was published in the Official Gazette with the number of 17863 as
the Law dated 9 November 1982 and numbered 2709.

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5.4. 1982 Constitution and Features
5.4.2. Main Features
The main features of the 1982 Constitution are:
(1) It is Kazuistik. It is the constitution that wants to organize
everything to every detail
(2) It is an inflexible constitution. The 1982 Constitution is a strict
(hard) constitution, which is subject to more difficult procedures than
ordinary laws. Besides, it is a stricter constitution than the 1961
Constitution in terms of both preserving its existence by increasing
the number of unchangable articles and adopting the public voting
process in the amendment of the Constitution.
(3) Strengthened the executive.

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5.4. 1982 Constitution and Features
5.4.2. Main Features

(5). It has envisaged solutions to eliminate congestion in the political

system. In this sense, in certain circumstances, the President was
authorized to renew the elections of Turkey's Grand National
Assembly (Art.116). Again, the meeting quorum of the TGNA is 200
deputies, one third of the total number of members (Art.96).
(6). It is a constitution dominated by a custodian understanding.
Considering the institutions of the National Security Council (MGK),
(YÖK) HEB and similar institutions, it is seen that the 1982
Constitution established a guardianship system.

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5.4. 1982 Constitution and Features
5.4.3. Main Features
• In the first part of the Constitution titled “General Principles”, the
basic principles of the state are specified.
• Article 1 of the Constitution, "The State of Turkey is a Republic.

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5.4. 1982 Constitution and Features
5.4.3. Main Features
• The title of Article 2 of the Constitution is "Qualifications of the
Republic".
• The Constitution, Article 2, "the Republic of Turkey, in the scope of
public peace, national solidarity and justice; respecting human
rights; loyal to the nationalism of Atatürk, initially to be based on
the fundamental principles of a democratic, secular and social
state of law," are counted as principles.

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5.4. 1982 Constitution and Features
5.4.3. Main Features

The Constitution Article 2, Peace of the Community, National

Solidarity and Justice Principles, Unitary State Principle
in Article 3, Official Language of the State, Flag, National Anthem and
Capital Principle,
In the 6th article, the National Sovereignty Principle,
The Principle of Equality in Article 10,
In the Article 11, the Binding and Superiority Principle of the
Constitution, etc. principles are.

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5.4.3. Main Features
5.4.3.1. Republicanism
• 1982 Constitution, "the State Shape" Article 1 titled, "The State of Turkey is
a Republic" means the Government of Turkey by the state shape of the
"Republic" has taken under that provision.

• The Republic is not mentioned in the first case of the 1921 Constitution.
• The Sultanate was abolished in 1922 and the Republic was declared on 29
October 1923.
•
Article 1 of the 1924 Constitution, "The State of Turkey is a Republic"
arrangements have been made.

• Articles 1 of the Constitutions of 1961 and 1982 use the same expression.

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5.4.3. Main Features
5.4.3.2. Unitary state
• The Government of Turkey is a unitary state (Cons. Art. 3).
• The unitary state is a single-center state in terms of both the
elements of the state (country-nation-sovereignty) and its organs
(legislative-executive-judicial).
• In the unitary state, nation, country and sovereignty are unique.
• In the unitary state, there are three organs in one state, namely
unity in the legislature, executive and judiciary.

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5.4.3. Main Features
5.4.3.2. Unitary state
• The federal state is a state of federated states. That is, there are
two types of states in the federal state, the federal state and the
federated state. However, in the unitary state, there is only one
state.

• In the federal state, both the federal state and each federated state
have their own constitution and legal order. In the unitary state,
there is only one constitution and one legal order.
• In the federal state, both the federal state and each federated state
have its own legislative, executive and judicial bodies. In the
unitary state, there is one legislature, one executive and one
judiciary.

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5.4.3. Main Features
5.4.3.3. State Respecting Human Rights

• The Republic of Turkey is a state respecting human rights (Cons.

Art. 2).
• Human rights are the rights that all people can benefit regardless
of race, religion and language.
• No distinction is made between the citizen and the foreigner in
order to benefit from these rights.

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5.4.3. Main Features
5.4.3.4. State Depends on Atatürk Nationalism

• The Republic of Turkey is a state depend on Atatürk

nationalism (Cons Art.. 2).
• 66/1 of the Constitution. According to the article,
"Anyone who is connected to the Turkish State with a
citizenship bond is a Turk.«
• According to this provision, nationalism is not
objective factors such as race, religion and language;
it is nationalism based on joy and sorrows based on
partnership and the desire to live together.

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5.4.3. Main Features
5.4.3.5. Democratic State
 The Republic of Turkey is a democratic state (Anya. M. 2).
To talk about democracy,
 political authorities should be determined by election,
 elections should be repeated at regular intervals,
 there must be a multi-party political life,
 the opposition must have a chance to be in power, and
 fundamental rights should be recognized and secured by the state.

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5.4.3. Main Features
5.4.3.6. Secular State
• The Republic of Turkey is a secular state (Cons. Art. 2).
• 1876 ​Kanun-u Esasi organized the state religion as "religion-is
Islam".
• In the 1921 Constitution, there is no regulation on this issue.
• It is seen that the 1924 Constitution repeats the 1876 Constitution
in its first form.
• The phrase "religion-is Islam" in the Constitution of 1924 was
removed from the Constitution in 1928 and the principle of
secularism was adopted in 1937.

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5.4.3. Main Features
5.4.3.6. Secular State

• For the secular state, it should not be the official religion of the
state; the state should be impartial to all religions and treat all
members of religion equally; state institutions and religious
institutions should be separate from each other. Finally, the source
of law in the state should be human will.
• It should be noted that while the rules of law are created, it can be
inspired by the rules of religion. For example, killing can be
banned and punished by both law and religion. This does not
mean that legal rules are religiously based.

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5.4.3. Main Features
5.4.3.7. Social State
 The Republic of Turkey is a social State (Cons. Art. 2).
 In connection with this, “social and economic rights and duties” are
elaborated in articles 41 and more of the Constitution.

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5.4.3. Main Features
5.4.3.7. Social State
• Social state is the understanding of the state's intervention in
social and economic life in order to ensure social peace and social
justice. In this way, the state imposes special regulations and gives
privileges for people in certain groups such as the elderly, women
and children.
• The main purpose of the social state is to provide everyone with a
minimum level of living in human dignity. In this sense, the right to
work, right the minimum wage, the right to social security, the right
to housing, the right to health and the right to education are related
to the principle of social state.

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5.4.3. Main Features
5.4.3.7. Social State
 Another way and methods to realize the social state is to
reduce income and wealth differences.
 Article 73 of the Constitution made everyone "obliged to pay
taxes according to their financial power to cover public
expenses". The fair and balanced distribution of the tax
burden is the social aim of fiscal policy.

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5.4.3. Main Features
5.4.3.7. Social State
• According to the Article 46 of the Constitution, state and public
legal entities are authorized to expropriate and establish
administrative easements on all or part of the immovable
properties in private property, provided that they pay their real
provisions in advance, in the case of public interest.
• In addition, land reform regulated by article 44 of the Constitution
and nationalization regulated by article 47 are another means of
reducing income and wealth differences. All these principles are
related to the social state.

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5.4.3. Main Features
5.4.3.8. Constitutional state (state of law)

 The Republic of Turkey is a state of law (Cons. Art. 2).

 The state of law is the state that adheres to the rules of law in its
activities and provides legal security to its citizens.
 The Constitutional Court defined the state of law in a decision as
“providing the most powerful, most effective and comprehensive
legal guarantee to the governed, and that the actions and
procedures of all state bodies comply with the law”.

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5.4.3. Main Features
5.4.3.8. Constitutional state (state of law)

• In order to talk about the state of law, all public institutions and
organizations, especially the legislative, executive and judicial
body, must be bound by law.
• In addition, members of the legislative, executive and judicial
bodies should perform lawful actions and transactions and be able
to account for their work and proceedings before the judiciary. In
other words, if lawmakers and practitioners can be tried before
courts that are legally independent, we can talk about the state of
law.
• The opposite of the rule of law is the state of police.

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5.4.3. Main Features
5.4.3.9. Equality Principle
• According to Article 10 of the Constitution, everyone is equal before
the law, regardless of language, race, color, gender, political thought,
philosophical belief, religion, sect and similar reasons. Women and
men have equal rights. The state is obliged to ensure that this
equality comes to life. The measures to be taken for this purpose
cannot be interpreted as contrary to the principle of equality.
• The measures to be taken for the widows and orphans of the
children, the elderly, the disabled, the war and duty martyrs, and the
disabled and veterans do not count against the principle of equality.
• No one person, family, group or class shall be granted privilege.
• State organs and administrative authorities have to act in accordance
with the principle of equality before the law in all their transactions.

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5.4.3. Main Features
5.4.3.10. The Binding and Superiority Principle of the
Constitution
• According to Article 11 of the Constitution, the Constitutional
provisions are the basic legal rules involving the legislative,
executive and judicial organs, administrative authorities and other
institutions and individuals.
• Laws cannot be against the Constitution.

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5.4. 1982 Constitution and Features
5.4.4. Unchangeable Principles

According to the 4th article of the Constitution, “The provision in the

1st article of the Constitution that the form of the State is the
Republic, and the qualifications of the Republic in the 2nd article and
the provisions of the 3rd article cannot be changed and cannot be
proposed to change.”

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5.5. Fundamental Rights and Freedoms
• According to Article 12 of the Constitution, everyone has
fundamental rights and freedoms, which are dependent on his
personality, untouchable, untransferable, indispensable.
• Fundamental rights and liberties also include duties and
responsibilities of the person towards society, family and others.
• The fundamental rights and freedoms are listed in the 17th and
more articles of the Constitution. However, the count here is not
limited. Other rights not mentioned in the Constitution are
evaluated within this scope.

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5.5. Fundamental Rights and Freedoms
5.5.1. Limitation of Fundamental Rights and Freedoms

• Fundamental rights and liberties can only be limited by means of

the LAW, regardless of their essence, only for the reasons set out
in the relevant articles of the Constitution.
• These limitations cannot be against the word and spirit of the
Constitution, the requirements of the democratic social order and
the secular Republic, and the principle of proportionality (Cons.
Art. 13).

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5.5. Fundamental Rights and Freedoms
5.5.2. Abuse Fundamental Rights and Freedoms
• None of the rights and liberties included in the Constitution can be
used in the form of activities aimed at disrupting the indivisible
unity of the State with its country and nation and eliminating the
democratic and secular Republic based on human rights.
• None of the Constitutional provisions can be interpreted to make it
possible for the State or individuals to engage in an activity aimed
at destroying or extending the fundamental rights and freedoms
granted by the Constitution to a broader extent than specified in
the Constitution (Cons. art. 14).

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5.5. Fundamental Rights and Freedoms
5.5.3. Stopping the Use of Basic Rights and Freedoms

In Article 15 of the Constitution, the cessation of the use of fundamental rights

and freedoms is regulated as follows:
“In the case of war, mobilization or extraordinary situations, the use of
fundamental rights and freedoms may be stopped partially or completely, or
measures against the guarantees stipulated in the Constitution may be taken as
long as the situation requires, provided that the obligations arising from
international law are not violated.
In the cases specified in the first paragraph, apart from the deaths that occur as
a result of acts in accordance with the law of war, the right to life and the
integrity of its material and spiritual existence cannot be touched; no one can be
forced to explain their religion, conscience, thoughts and opinions, and cannot
be charged with them; crimes and punishments cannot be made in the past; no
one can be considered guilty until the guilt is determined by a court order ”.

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5.6. Amendment of the Constitution

• Constitutional amendments are the changes made by the

secondary constituent power. These are made by a law, but these
laws differ from other laws in terms of proposal, negotiation,
decision and approval stages.
• Constituent power is briefly defined as the power of making or
changing a constitution.

• The power of making a new constitution is called “essential

constituent power” and in an existing constitution, the power of
making changes in accordance with the procedures stipulated by
that constitution is called “secondary Constituent power”.

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5.6. Amendment of the Constitution
How to amend the Constitution is regulated in article 175 as follows:
Amendment to the Constitution shall be proposed in writing by at least one-third of the total number of members of the Grand National Assembly of Turkey.
Bills to amend the Constitution shall be debated twice in the Plenary. The adoption of a bill for an amendment shall require a three-fifths majority of the total
number of members of the Assembly by secret ballot.

The consideration and adoption of bills for the amendments to the Constitution shall be subject to the provisions governing the consideration and adoption
of laws, with the exception of the conditions set forth in this Article.

The President of the Republic may send back the laws on the amendments to the Constitution to the Grand National Assembly of Turkey for
reconsideration. If the Assembly readopts, by a two-thirds majority of the total number of members, the law sent back by the President of the Republic
without any amendment, the President of the Republic may submit the law to referendum.

If a law on the amendment to the Constitution is adopted by a three-fifths or less than two-thirds majority of the total number of members of the Assembly
and is not sent back by the President of the Republic to the Assembly for reconsideration, it shall be published in the Official Gazette and be submitted to
referendum.

A law on the Constitutional amendment adopted by a two- thirds majority of the total number of members of the Grand National Assembly of Turkey directly or
upon the sending back of the law by the President of the Republic or its articles deemed necessary, may be submitted to a referendum by the President of
the Republic. A law on the amendment to the Constitution or the related articles that are not submitted to referendum shall be published in the Official
Gazette.

Entry into force of the laws on the amendment to the Constitution submitted to referendum shall require the affirmative vote of more than half of the valid
votes cast.

The Grand National Assembly of Turkey, in adopting the law on the Constitutional amendment shall also decide on which provisions shall be submitted to
referendum together and which shall be submitted individually, in case the law is submitted to referendum.

Every measure including fines shall be taken by law to secure participation in referenda, general elections, by-elections and local elections.

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 Cheers

auzef.istanbul.edu.tr

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