A. DEMOCRACY, WAVES OF DEMOCRATISATION AND CONTRARY WAVES OF DEMOCRATISATION

      1. Democracy is combined of two words; demos and cratos. Demos means not only plurality, but also minority. A human being  is citizen if he inspects (audits) his taxes. Cratos is power or administration (management, government). Democracy is a kınd  form of  management according to which every man is the fırst citizen.2  The basis of democracy is not to grant privilege to any group or class, but liberty and equality.3  In democratic states, main power  belongs to the people not monarch, dictator or  any power.4  Abraham Lincoln (1809-1865) defines the democracy, adressing at Gettysburg; “Democracy is government of the people, by the people, for the people”. The meaning of this adress is that government must be for people, not oppresson  people. The government takes its legitimacy from people. People elect the government, not government chooses the people.

      Democracy has four basic principles; (I) individualism, (ii) authority  or power to represent and act for people by election, (iii) plurality, (iv) Liberty for opposition. Democracy is defined in the sense of liberal democracy in contemporary world. In democratic states, all citizens are in liberty and equality and they have the the period of political volition (mind) creative  without any restriction (kısıtlama),5  and the government  serves to citizens, not citizens serve to the government in the relations between rulers and people.

      2. The first wave of democratisation according to Samuel Huntington, began in 1820s, and ruled hundred years approximately. The roots of this fırst wave are  American and French revolutions. After this wave,  general vote right and responsibility of upper administrators to the parlamentary were reached. After this affirmative process, contra--wave of democratisation came. It  ruined the regimes of  despots in 1920s,  like Hitler and Mussolini in Germany, Italy , respectıvely, Czesheslovakia, Brasil, Arjantin, Uruguay, Greece, Espanol and Japan.

      The second wave of democratisation (1950-1960)  started after the Second World War. At the beginning of 1950s, Turkey, Greece and Uruguay turned to  democracy. This wave ended in 1960s; Military governments took the the power in Peru, Brasil, Bolivia, Argentina and Ecuador. The military of Pakistan (1958), Indonesia (1965), Marcos in Philiphines (1972), Gandhi in India (1975) broke the democracy. The militarist intervention broke the Greece Democracy in 1967, also in Turkey in 1960-1961, 1971- 1973, 1980-1983.

      The third wave of democratisation began in 1974 with Portugal revoluation. Democratic regimes took the lead approximately in thirty countries  in Europe, Asia, and Latin (South) America, the  place of despotic countries. At this period,  a strong trend of globalisation began. Russian communist leaders in 1989, and Baltic Countries in 1990 accepted democracy; communism collapsed in Polonia, East Germany, Czesheslovakia and Romania. The third wave of democratisation is continuing, but sometimes contrary waves like intervention of armies in the government are taking place.

      3. The problems of constitution do not lack on the agenda of Turkey. It may be accepted  as an alienation to mention about constitution; but there are a lot of basic social problems. However, this is true.  Complaints about Constitution are increasing; the unıons of labour, the political  and scholar quarters are concerned about the problems of Constitution. Debates as regards Constitution can not be fantasy.

      It is necessary to mention The Turkey’s Constitutions before 1982 Constitution.

B. TURKISH CONSTITUTIONS BEFORE 1982

      1. 1876 Kanuni Esasisi (The Constitution of 1876): After the proclamation of the Edict (Rescript) of Reorganization in 1839, Ottoman Empire  had been westernised. 1876 Constitution is an advanced stage of Senedi Ittifak (1808). Tanzimat Fermanı (1839) had brought very important results  to the legislative and political life. The government was made  to be responsible to the law, the transition of representive regime was adopted, human rights defined, serious steps examined. Nevertheless,  it can be criticized about the privilege of Halife-Sultan, and there was not enough security of parliament and also  liberty was lacked.

      2. The Constitution of 1909 : This was an amendment of 1876 Constitution but also  was very important and extensive. For this reason,  this can be said to have been  a Constitution. With this Constitution new rights were accepted, and  autority of Sultan was ruled out and Parlamentary System was established which was balanced between legislative and executive powers.

      3. The Constitution of 1921 (1921 Esas Teşkilat Kanunu): The National Assembly enacted this Constitution. This was a short (it contained only 23 articles) but very important document. For the fırst time, it proclaimed the principle of “national sovereignty”, calling itself the “only and true representative of the nation”.6

      This was the Constitution of Independance War of Turkey and had prepared the conditions of transitive period. It did not contain anything about fundemental rights and freedoms, involving more liberality than formers.

      4. The Constitution of 1924 (1924 Esas Teşkilat Kanunu): This was impressed from individualism and natural law. National sovereingty, classical rights and freedoms had been arranged but  had not ensured to the people. This Constitution ruled between 1924 and 1960. This was not a hindrance to liberalisation, freedom and democracy in Turkey.

      The Constitution of  1924 was undoubtedly a democratic Constitution in spirit. However, it was a “majoritian” or “Rousseauist” concept of democracy, rather than a “liberal” democracy based on an intricate system of checks and balances7 .

      5. The Constitution of 1961: This was Turkey’s fırst Constitution which was enacted after intervention of Turkish Armed Forces. On May 27, 1960, units of the Turkish armed forces overthrew the Menderes government. The first intervention of Army in Republic Age, was not hierarchical.

      Indeed, all Turkish Constitutions have been after a reaction.

      This Constitution was an advanced step about separation of powers, balances of powers, democratic rules  of law, independence of judiciary. In this, there was basis of liberal and plural democracy. Both the 1971 and 1973 amendments took place during the interim period of military intervention which forced the government to resign, and installed a technocratic or “above-party” government.8 By the amendement of 1971, military jurisdiction was enlarged against the civil jurisdiction. A new court was established under the name of “High Military Administrative Court” [2] . Also, Council of Ministers gained the right of some limited legislation authority named “Statutory Decrees” (Decrees havıng the effect of law). Autonomy of some agencies like Universities, State Radio and TV were minorized.

       In the Constitution of 1961, the general principle was freedom, and the limitation of freedoms was a rare possibility. But by the 1971 amendment, it was converted just opposite by the article 11.

II. BASIC SOCIAL AND POLITICAL DYNAMICS OF THE CONSTITUTION OF 1982:

A.      GENERALLY:

      Towards the end of the 1970s, the Turkish political system faced an increasingly serious crisis brought about by political polarization, violence and terrorism. This instability led to the military takeover of 12 September 1980, which created a “National Security Council” headed by General Kenan Evren, then the chief of the General Staff. General Evren ıntended the presidency of the State, and the Council undertook  the functions of the Turkish Grand National Assembly (TBMM).9

      Constitution of 1982 does not depend upon the limitation concept of political power. Western liberal constitituonalism depends upon this concept. So, it is different from them. In the West, feudal monarchism had unlimited and non-responsible rules ın the past. Constitutions aimed to struggle with them. InTurkey, the 1876 and 1909 Parliamentary monarchism constitutions tried to limit monarchism. But 1924 and 1961constitutions aimed to find liberty and democracy.

      Before and after the military operation of 1980, it was extensively propaganded that: “the freedom  in the constitution is very large, freedom has lost its attractiveness and the people wish security, not terror.”

      Constitution of 1982 is the first and only Turkish Constitution  that has a main purpose on strengthening the political power not the liberty or democracy. In this constitution, the given rights and freedoms were taken back by the provisions, beginning by the word “but”. So this constitution is sometimes called as “The Constitution of But ”10.  Constitution of 1982 was written under the technics of extra-ordinary administration. The exemptions of judiciary was enlarged as the second constitution. So, it is sometimes called as “The Constitution of Exempt”11.

      There has been some similarities and differences among the four military operations in Turkish political life. All have abolished the parliament (1960 and 1980) and established non-parliamentary governments (1971-1973), new constitutions were arranged (1961-1980) , or importantly ammended (1971).

B.THE FOUR ESSENTIALS THAT SHOULD BE INCLUDED BY A LIBERAL-DEMOCRATIC CONSTITUTION

      The followings are the essentials for a liberal democratic constitution;

      (1) Liberal and pluralist basement ;

      (2) Free activism of political parties;

      (3) Representativeness;

      (4) Referandum12.

      When we observe the 1982 Constitution, it is neither similar to liberal-democratic constitutions nor the young Mediterranean Democratic Constitutions (Spain,Greece). It  is similar to some Latin American Constitutions. Because;

      1. The Constitution of 1982 was not arranged by an assembly which has legal represantation authority. The assembly of consultation which prepared the project of the Constitution did not consist of the elected members but the appointed ones. The  Council of National Security was the power over all. The real constitution-maker was that Council. A similar council had shared  that authority with an assembly which has some represantational quality during the preparation process of the 1961 Constitution. A represantation without election is not acceptable in the democratic public law13 . In The History of  Turkish Public Law, the word “Meclis ( Majlis/assembly )” was called for the meaning of an assembly which consists of  partly elected members (like Meclis-i Ahkam-ı Adliye)14.

      2.The Council of Consultation is not qualified to represent the people neither legally nor sociologically.

      3.The Constitutive Assembly (National Security Council and  the Assmbly of Consultation ), did not wish  to ammend the wrongful articles of the 1961 Constitution. But it prefered to constitute a new one.

      4. The project of the constitution was publicly negotiated under pressure. It was  allowed to be negotiated in only press in a very limited period .

      5. The referandum which would provide legality for the Constitution was far from being realistic.15 Also, it was not open what would happen if the people refuse it. It means that the military administration would survive. The voters did not know if they vote the president (also the head of National Security  Council or they vote about the constitution) because both of them had been joined. It was forbidden by the 71 numbered Decision of The National Security Council to comment informatively the speeches of Kenan Evren (The Head of National Security Council) on the project of The Constitution.16  So, it can not be considered as referandum but may be a plebisit.

      The principal characteristics of the state have been described in articles 1 through 3 of the Constitution. Article 1 states that ( the state of Turkey is a Republic ) Article 2 describes the characteristics of the republic as “a democratic, secular [3] , and social state governed by the rule of law in accordance with the concepts of social peace, national solidarity, and justice; respectful of human rights committed Ataturk nationalism, and based on the fundamental principles set forth in the Preamble.”

      The Constitutıent Assembly (Kurucu Meclis) also passed a law on the submission to popular referandum of its Constitutional Project (Law No. 2707). The referandum took place on 7 November 1982, and the project was adopted by  the affirmative votes over 91 percent of the voting electrorate17 . General Kenan Evren was elected the President of the Republic in the same referandum in accordance with the Transitional Article one of the Constitution.18

C.THE SOURCES OF THE CONSTITUTION OF 1982

      The sources of The Constitution;

      (I) The 1971  Ammendment of the 1961 Constitution,

      (ii) European Human Rights Convention (It may be considered a formal source but not a real source),

      (iii)The codes and the orders which had already been promulgated by Natıonal Securıty Councıl.

      The National Security Council that is the constutive power of the 1982 Constitution, also legislated a very large number codes especially about political life and security field. Nobody can apply to the Constitutional  Court about those codes (Temporary article 15 of the 1982 Constitution).

      The only constitutive power between 1980-1983 was The National Security Council which consisted of the five members. The five-member Council included the commanders of the Army, Navy, Air Force and Gendarmerie.19

D. THE OPPOSITE SIDES OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1982 CONSTITUTION

      1. 17. article of European Human Rights Convention was used, only the abuse of person’s liberties was forbidden, the word “state “ which is in this article is not in the Constitution text.

      2. European Human Rights Convention  banned only the actions in the 17th article but 1982 Constitution banned the opinions. Restrictions in the European Convention on Human  Rights is different from this Constitution. It may be said that the politics of state is preffered to the supremacy of law.

      The Constitutional Court of Turkey used international treaties, general principles of law, the European Convention on Human Rights as a  reference norm.

E.THE DIFFERENCES BETWEEN  1961 AND 1982 CONSTITUTIONS

      1.The former Constitution prescribed “the executive” as a mission, 1982 constitution defined the executive as a mission and a power. Moreover, this power is taken from Constitution.

      2. According to the 1982 Constitution, regulation and power of rule enacted in ordinary and extra-ordinary cases, “statutory decrees” or “law amending ordinances” (Decrees having the effect of law) (Kanun Hükmünde Kararname= KHK). These acts called ın Anglo-American countries, “delegated legislatıon”.

      3.The powers of the President of the Republic was increased. It is unclear to dual system. Thus, it can be concluded that the 1982 Constıtutıon created a “mixed” or “hybrid” system of government somewhat along the lines of the French Constitution of 1958. [4]

      4.The independence of the judiciary is rather lacked in 1982 Constitution. A lot of procedures of  State is given out from judiciary inspection (lıke 1982/125-4, 159/4, 125-6).20

      5. 1982 Constitution is a very detailed form. It is used not for freedom, banned freedom. For this reason, the Constitution remained at the back of society. 21 .

      The new Constitution, political parties law, and electoral law reflect these concerns of the military and indicate the extent to whıch Turkey’s new attemp at democracy is intended to be different from its earlier democratic experiences. [5]

      6. 1982 Constitution’s Consultative Assembly was not elected by people, National Security Council have given last form. There are many banned areas in this Constitution 22 .

      With 1971 amendement, it is partly forbidden to decide as administrative act and procedure.

      Decisions have taken by Supreme Military Council (YAŞ) and Supreme Council of Judges and Public Prosecutors (HSYK) and The President of the Republic are out of judiciary. The area of judiciary in 1982 Constitution was damaged.

      In 1971, the administration of autonomy Turkish Radio and Television, Universities Autonomy was reduced also. In 1981, administrative autonomy was ended in the universities.

      According to article 4 of the 1961, and article 6 of the 1982 Constitutions, “Sovereignty is vested in the nation without reservation or condition”.

E. TEMPORARY 15^th ARTICLE OF 1982 CONSTITUTION (IMMUNITY OF JUDICIARY ABOUT 12 SEPTEMBER 1980 ADMINISTRATORS)

      It is forbidden to criticise (apply) Constitutional Court at the time between 12 September 1980 - 6 November 1983. In this term, basic laws, statutory decrees (having the effect of law) like union of labour political parties and electoral codes were enacted. 23.

      After military intervention, military administrators have been ensured themselves as exit guarentees at the democratic rule. Turkish Constitution is similar, in this aspect, to those in Portugal, and Brazil. For this reason, in these democratic countries, the chance of consolidation is difficult .

      Shortly, the law of 12 Sept. benefıts from judiciary immunity and shortage of judiciary. This is named as extra-ordinary constitualism.24

F. THE POWER ACCORDING TO THE 1982 CONSTITUTION

      It might be said that the military power was gradually autonomised after 27 May 1960, 12 March 1971 and 12 September 1980. National Security Council  (NSC) established fırst the 111. article of 1961 Constitition. National Security Council is very important in the view of soldiers. In 1971, with 127. article, the Court of Account was reduced on soldiers.

      After 1982 Constitution, the power of soldiers approximately autonomized. It changed the statue of National Security Council. With 1982 Constitition, commanders of Martial Law is dependent to the chief of  General Chıef, not to the prime minister. Before this,  they were dependent to the prime minister. With 118.  article of 1982 Constitition, statues of National Security Council were considerably widened. It may be said that, with 1982 Constitution, soldiers are more effective on civil administration25 .

G. THE CONSTITUTION OF 1982 AND INDIVIDIUAL (IT’S POLITICAL PHILOSOPHY)

      The 1961 Constitution was respectful for human rights on democracy. Individualism was one of its basic principals .But the 1982 Constitution presents the democracy within its words (1982/ introduction): the superiority is not within the universal principles or the law but in the constitution and the codes (1982 /introduction ) Instead of universal democratic principals, it gives only a nationalized democracy comprehension. ”It brings a democracy and liberty, limited, under its positive text”.26

      The Parliamentary Assembly of the European Council declared the standard democracy phrases, instead of national democracy, by its 800 numbered decision in 1983. Followings were defined as the legal standards of democracy;

      1. Democracy is a kind of administration in which people administrate people,

      2. The basis of a democracy is the rule of law and the division of state powers. 

      3. In a democratic system, government and administration shall exercise within respect of the rule of law.

      4.  Democracy makes the judges authorized to inspect the administration,

      5. It shall be responsibility of a democratic system to provide a good balance between the government’s activities and the protection of the citizens rights and freedoms,

      6. Democratic system shall provide a good balance between public interest and the protection of basic individual rights. The majority shall be in respect of the minority. The 15th article of The European Convention on Human Rıghts should actively be realized27 .              

      In the Constitution, the main principal is restriction but not freedoms. The Constitution declares itself as a liberalist democracy but it arranges its idea within very limited statements28. In the Constitution, The State is superior than the individual and society. It is the first and the only constitution in The West that considers the state as a “Holly State“. The individual and society depend upon The State. It could not have realized a good balance between freedom and authority.29

      The 1982 Constitution provides a great possibility on restrictions of basic rights and freedoms to the legislation. It has such a limitation system that can never seem in any Western system.30

      In the Constitution of 1982, the basic novation is the multi-restrictions system.The first face is the general restrictions provision (art.13) The general restrictions may be realized in case of nine different reasons. All of the basic rights and freedoms can be restrıcted in case of each of these reasons with no exempt. This nine cases are neither clear nor concrete statements. There is not such a general restriction case in any of western countries. These are not in accordance with The European Convention on Human Rights  (ECHR).31

      The second restriction phase is the special restriction cases.

      The third restriction phase is the article 14, the general prohibition and  sanction provision :”The defined constitutional prohibitions and the orders can directly be exercised even when there is not any provision in codes.”32

      The 1961 Constitution had a principal providing that any restrictions can only be realised wıth legislation and it was impossible to restrict  “essence (the core) of” any right or freedom. In the field of the “essence (core)” no determinatıon could be made. In 1982 Constitution, this principal does not exıst. However “The Democratic Society Order” principal was provided  that any determinatıon shall be in accordance with this principal. This principal is of course more limited than the said provision in the 1961 Constitution. It is relative  and does not provide a certaın field, out of determinatıon.

      The Constitutional Court  shall freely comment the article 13/2, because we shall not have a different democracy teory from that  in the west. And this is Atatürk’s view of democracy.

      The basis of the Western Constitutionalism depends upon equality and liberty that come from the honor of the humanity. Constitutionalism has been considering that the political order’s main function is to protect the individual’s basic rights and freedoms, since Locke and Montesquieu. Democratic process is an indivisible whole, comprising fundemental rıghts and freedoms.33 The fundemental qualificatıons of secularity are the necessities of a democratıc society’s order, too.34 Freedom and equalıty are the necessities of the democratic society’s order.

      In the 1961 Constitution personel liberty could only be determined by judicial provision. This provision was converted into a flexible situation by the 1971 ammendment, but the Constitution of 1982 provide great authorities  to the administration (the police) in some certain cases (if it is dangerous to be late). General and administrative judiciary has lost its importance. The extra-ordinary administration was considered like  a normal administration. So, the executive power has gained superiority against the two other powers.35

      The Constitution has fidelity for not only the individual  rights but for the collectıve libertıes, also (art. 33-34). The collectıve socıal rıghts (strıke, syndıcate (unıon) etc.), polıtıcal actıvıtıes were determıned. So, individuals, society, workıng people and polıtıcal groups, all were fundementally determıned.

      Conclusively, the 1982 Constitution protects authority, not the individual, freedom and lıberal-democracy.36  So, iıt was sometimes claiımed by someone as a  “anti- constitution”. 37

      It may be said that, The Constitution of 1982 ıs a handıcap agaınst democracy. However to realize a new Constitution is much difficult, too. In order to constitute a strong democracy ın Turkey, the large competence belonging to some authorized agencıes should be minorized, but before this, it is necessary the corruption in the official fıeld should be ended and on accountable admınıstratıon be established. 38

      Ansay, Tuğrul , and Don Wallace Jr., Introduction to Turkish Law, 3rd Edition, USA, 1987.

      Altan, Mehmet, "Türkiyenin Bütün Sorunu Politik Devletten Liberal Devlete Geçememesidir",  in  Ikinci Cumhuriyet Tartışmaları, Başak Yayınları, Ankara, 1993

      Çağlar, Bakır, “Anayasanın Hukuku ve Anayasanın Yargıcı Yenilenen Anayasa Kavramı Üzerine Düşünceler”, Anayasa Yargısı, C. 8, Ank. 1991, pp. 13-62.

       Duran, Lütfi, “Türkiyede Anayasa Yargısının Işlevi ve Konumu”, Anayasa Yargısı, Ank. 1984, pp. 57- 87.

      Inal, Turgut, “1982 Anayasasının Gtirdiği Sıkıntılar Ile Anayasa Yargısına Genel Bakış”, Anayasa Yargısı, Ankara 1996, AYM Yayını, no. 32.

      Instıtut Für Politikwissenschaften, Parteienverbot und modernes Demokratieverstandnis, p. 1-7.

      Göze, Ayferi, Siyasal Düşünceler ve Yönetimler, Beta, 7. Bası, Ist. 1995.

      Giovanni Sartori:The Theory of Democracy, Revised, New Jersey, 1987, by Chatham House Publishers, inc.

      G. Bingham Powell, Jr., Çağdaş Demokrasiler, Katılma, Istikrar ve Şiddet, Türk Demokrasi Vakfı ve Siyasi Ilimler Derneği Ortak Yayını, Çev. Mehmet Turhan, Ank. 1990.

      Özbudun, Ergun, “Constitutional Law”, in Ansay, Tuğrul , and Don Wallace Jr., Introduction to Turkish Law, 3rd Edition, USA, 1987.

       Özbudun, Ergun, Türk Anayasa Hukuku, Ank. 1995, 4. B.

      Özbudun, Ergun-Aliefendioğlu, Yılmaz, “Türkiye Raporu”, Anayasa Yargısı, 7. Avrupa Anayasa Mahkemeleri Konferansı, 27 Nisan 1987, Lizbon, Ankara 1988, s. AYM Yayını.

      Özçelik, Selçuk, "Demokrasi Konusunda", Ilim ve Sanat, 1989, pp.14-17.

      Robert A. Dahl, Demokrasi ve Eleştirileri (orijinal adı: Democracy and its Critics), Çeviren Levent Köker, Türk Siyasi Ilimler Derneği-Türk Demokrasi Vakfı Ortak Yayını, Ank. 1993.

      Kuzu, Burhan, Anayasa Yargısı, Ank. 1991, C. 8.

      Kili, Suna, “Temel Hak ve Özgürlükler Yönünden 1961 ve 1982 Anayasaları”, Anayasa Yargısı, Ank. 1984, AYM yayını no.4, pp.23-28.

      Robert A. Dahl, Demokrasi ve Eleştirileri (orijinal adı: Democracy and its Critics), Çeviren Levent Köker, Türk Siyasi Ilimler Derneği-Türk Demokrasi Vakfı Ortak Yayını, Ank. 1993

      Soysal, Mümtaz, “Temel Nitelikleriyle 1961 ve 1982 Anayasaları (Karşılaştırmalı)”, Anayasa Yargısı, Ank. 1984, AYM yayını no.4, pp. 11- 20.

      Tan, Turgut, “1982 Anayasası Yönünden Yürütme Görevi ve Yetkisinin Niteliği (Güçlü Devlet ya da Güçlü Yürütme)”, Anayasa Yargısı, Ank. 1984, AYM yayını no.4, pp.31- 47.

      Tanör, Bülent, Iki Anayasa, 1961-1982, 3. Baskı, Beta, Ist. 1994.

      Tanör, Bülent, Osmanlı Imparatorluğunda Anayasal Gelişmeler, Ders Notları, Ist. 1982.

      Turhan, Mehmet, “Anayasamız ve Demokratik Toplum Düzeninin Gerekleri”, Anayasa Yargısı, Ank. 1991, pp. 401-420.

      Turhan, Mehmet, The Constitutional Court of Turkey, Ank. 1991, Anayasa Mahkemesi Yayını.

      Uygun, Oktay, 1982 Anayasasında Temel Hak ve Özgürlüklerin Genel Rejimi, Kazancı Yayını, Istanbul 1992.

      Yazıcı, Serap, Türkiye’de Askeri Müdahelelerin Anayasal Etkileri, Yetkin Yayınları, Ankara, 1997.

      Text: The Constitution of the Republic of Turkey, publıshed by the Prime Ministry, Directorate General of Press and Information.

 

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