İstanbul Kültür University Faculty of Economic and Administrative Sciences Department of International Relations Constitutional Law An analyze of Turkish Constitutional developments With regard to Legal theories of Carl Schmit and Hans Kelsen By:Furkan Engin1403020016 İstanbul 2016 Independence war era and the establashing of the Grand National Assembly Mondros treaty was turning point for the Turkish Nation. After the defeat of Ottoman Empire in WW1 his territory lessen to a small region in the inner Anatolia. The occupation of İzmir after the treaty, caused to a resistance movement which will spread over the whole anatolia. Even there was resistance against occupations of greeks , italians , french and british alliance the movement was nor united as a monoblock and neither supported by the government. The capital city of the Empire was Istanbul and also it was occupied by entente powers. And the attitude of Sultan -which were the head of the state- was gory but serious againts the resistance in the Anatolia ‘’ the resistance againts occupation of greek troops in Izmir announced as treason’’ Nuran Koltuk, Batı Anadolu’da Kuva-yı Milliye’nin askeri ve mali kaynakları. Therefore some of the turkish army officers resigned from the military and join to the resistance movement in Anatolia. Later after the congress of Erzurum and Sivas the movement kuvayı milliye formalized under one flag as a regular army. And in 23th April 1920 the National Assembly founded as an control base of the movement. For Berthelemy ‘ state is a organised nation’ and the National Assembly in Ankara was the organisation which include the people in every regions of Anatolia. There was still and government in Istanbul but Ankara will become the new capital of the new state. Since all states have an constitution written or unwritten, to describe the functions and structure of the state, The National Assembly also needed it to regulate its process. A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, After the foundation of the Assembly in Ankara there was structure of it even they did not write or accept an constiutiton yet. There was a Assembly Government (or government by Assembly ) which did not have prime minister, or minister or cabinet as an executive organ. The assembly was an constituent assembly and there were representatives from various provinces of the country.’’The Characteristic of this Assembly was that it was endowed with legislative and executive powers.’’ Constitutional Development Of Turkey Since Republic , Prof. Dr. İlhan ARSEL 1961. After the foundation of National Grand Assembly , Mustafa Kemal offered to regulate a form of written codes to state the structer of the Assembly Government, and after the discussions the Teşkilat-ı Esasiye Kanunu ( Turkish Constitution of 1921) was accepted in 20th January 1921. Tülin Çağdaş, 1921-1924-1961-1982 Anayasalarının özellikleri (İstanbul: Beta 2009) s.2 The Grand National Assembly was an example of Constituent power on several counts. Also Mustafa Kemal used the term meclis-i müessesan Şükrü Hanioğlu Atatürk and intellectual Biography ( closely means primary constituent parliment ) to identify the Grand National Assembly. As a primary constituent power, it included the political unity of anatolia during occupations. According to Rousseau a political unity is a first step to the constitution , that means the political unity creates the constitution rather than constitution creates the political unity. Carl Schmitt , Constitutional Theory ,J. Seitzer trans. (Durham NC: Duke University Press, 2008) - Chapter 7 The Constitution as Contract And Carl Schmit defines Primary constituent power as ‘’the primary political decision and will of a nation who comprehend its own political entity’’ Carl Schmit, Vervassunglehre pp. 75 For kelsen there should be a hiearchy of norms, and it basically means that every norm has to derive its validity from other higher norm. And a constitution is a type of norm and he placed it on the top of the hierarchical structre but if we ask where the constitution derive its validity the answer would be according to kelsen , from the term ‘grundnorm’.Therefore he claimed that there is a hypothetical grundnorm which derives the constitution. In a territory a group of community coming together, afterwards an internal group lead to organize the community.The organized group have a public power thus the state be established. And the organisational form of the state ,which created by itself , is the grundnorm, or the philosophy, mentality of the organisation. Hukuk Felsefesi ve Anayasa Yargısı Prof. Dr. Niyazi ÖKTEM (Anayasa Yargısı Dergisi pp 269) In the kuva-yı milliye organisation its clear to see the grundnorm.After the resistance againts occupation of Anatolia unite as a one fist and established the Grand National Assembly in Ankara they established a constitution which derived from the grundnorm. Their grundnorm was a philosophy of independence and salvation of Anatolia as Anatolian people. But german legal theorist Schmit was againts the term of ‘grundnorm’ and he propounded ‘constituent power’ to determine the origin of establishing constitution or the way of establishing constitution. Constituent power is the political will , whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence. It is concrete political being. Carl Schmitt, Constitutional Theory J. Seitzer trans. (Durham NC: Duke University Press, 2008), pp 125It determines the nature of the institutional arrangement of political unity. It establishes the constitution. Martin Loughlin, The concept of Constituent power - Critical Analysis of Law Workshop, University of Toronto And the sovereignity comes from the people of Anatolia to establish a constitution as a constituent power. It was not accepted by referandum but by parlimentary voting, and when the climate of war in 1920s considered it is also adequate. The 1921 Constitution The Constitution of 1921was a simple document consisting of only 23 articles and used in a brief period from 1921 to 1924. The constitution only includes the framework of the Grand National Assembly as a central office of independence war and the legislative, executive and judiciary powers were not seperated. The constitution also voted as a basic law rather than a constitutional voting. The voting required simple majority and the votes of at least 2/3rd of the parliment unasked. There was no article about the supremacy of itself to other laws.And did not mentioned the change conditions of itself.In that case 1921 constitution is a soft constitution. With a “soft” constitution alteration can be achieved easily. In other words the 1921 constitution was open to changes by another simple majority voting in parliment and both Hans Kelsen and Carl Schmitt were againts the constitutional changes. When we look more closely to the 1921 constitution and 1876 constitution (of Ottoman Empire) , we saw that it has serious diffrences between the Ottoman Empire’s constitution. Article 1 of 1921: Sovereignty is vested in the nation without condition. The governmental system is based on the principle of self-determination and government by the people. Unauthorized translation of 1921 Constitution of OFG, November 2003. Article 3 of 1876: The Ottoman sovereignty, which which includes in the person of the Sovereign the Supreme Caliphat of Islam, belongs to the eldest Prince of the House of Osman, in accrodance with the rules established ab antiquo. http://www.anayasa.gen.tr/1876constitution.htm By the 1st Article, the sovereignity given to the nation rather than to the Sultan as we can see in Ottoman Empire. If we claimed that the Kanuniye Esasiye of 1876 is still valid in the Anatolia, there should be a liquidation of it. Thereby in 17 November 1922 the Grand National Assembly abolished the Ottoman sultanate to prevent illegality of itself and the legal position was solidified with the signing of Treaty of Lausanne on 24 July 1923. But the abolition of 1876 constitution took place with the 1924 constitution. In 1921 constitution there was no cabinet or seperate executive power but the Grand National Assembly include the three powers in it. The President of Grand National Assembly is also the president of state.The article 3 gives an information about the government. Article 3 of 1921: The Turkish State is governed by the Grand National Assembly (Büyük Millet Meclisi) and its government is entitled 'the Government of Grand National Assembly' (Büyük Millet Meclisi Hükûmeti). https://en.wikipedia.org/wiki/Turkish_Constitution_of_1921 The date 29 October 1923 is an important day for the turkish nation. There was an amendment of 1921 constitution and proclamation of the republic.And the constitution was amended to declare Turkey to be a republic, its official language is turkish and its religion is Islam. The 1923 amendments of constitution did not requires a liquidation since it contains amendments. Carl Schmitt states 5 diffrent case in the application, change and liquidation of the constitution. Karl Schmit, Verfassunglehre, pp 99-103. 1)Verfassungsvernichtung - Demolition of the Constitution In this case both the constitution and the will of primary constituent power liquidated.For example a transform of monarchy to the democracy or visa versa. The establishing of Grand National Assembly in ankara and its 1921 constitution and 1924 constitutions , the abbolition of Ottoman Sultanate were the instance of Verfassungsvercnichtung in Turkish Constitutional history. 2) Verfassungsbeseitigung - Abolisment of the Constitution Carl Schmitt used two diffrent words which have close meaning but he defines them in diffrent way. In first case the will of primary constituent power included to the demolition with constitution but in second case there is only liquidation of constitution. The new constitution is not going contrary to the will of constituent power. In other words there is a new constitution after verfassungbeseitigung but no transformation of democracy to monarchy or parlimentary to presidential. In turkish constitutional history the 1960 and 1980 military coup d’etats and their new constitutions ( The 1961 constitution and 1982 constitution) are an example of Verfassungbeseitigung. 3)Verfassungsänderung – Change in Constitution The change in constitution in a way allowed by the constitution itself .Schmitt again mentioned about the diffrence between ‘’constitution’’ and ‘’constitutional text’’ and only accept the change in ‘’ constitutional text’’ he was against the change in ‘’constitution’’ which is the essence of the political structure. And we start to see articles which are unchangable in 1924 and further constitutions of Turkey. The following articles of 1924 Constitution is explaining the Verfassungsanderung- Change in Constitution.And in which conditions it is possible. Article 1 of 1924 : The Turkish state is republic. Edward Mead Earle, The new constitution of Turkey (The translated form of 1982 constitution) pp 29 Article 102 of 1924 : Amendments to or modifications of this Constitution may be made only upon the following conditons; Earle a.e. , pp 29 The proposal to amendt must be signed by at least one-third of the total number of deputies. The proposed amendment must be thereafter discussed by the Assembly and adopted by vote of two-thirds of the total number of deputies. No proposal to alter or amend Article 1 of the Constitution, specifying that the norm of government is a Republic. 4) Verfassungsdurchbrechung – Violation of the constitution The actions , process and legislations or executive applications which are unlegal to the constitutions. There is no changes in norm or constitution but illegal actions against constitution. It was come true many times after the multi-party system in turkey, In 1950s but now its more related to the 1960 constitution and we will brouch the subject later. 5) Verfassungssuspension – Suspention of the constitution The suspention of the constitution for a given period. Its should be only for the protection of constitution in chaotic circumstances, when the constitution is under attack. And if the suspention is the only way to protect constitution. It is possible to see these 5 cases of Carl Schmitt in the Turkish Constitution. If we summarize again the constitutional changes. The 1921 constitution is a kind of Verfassungdurchbrechung (Violation of the Constitution) if we accept the Ottoman Empire’s 1876 constituion is valid in that time. There was a amendentment of 1921 constitution in 1923 it is called Verfassungsänderung (Change in the Constitution.) The 1924 Constitution After Treaty of Laussane there was Population exchange between Greece and Turkey.This event was important for homogeneity of the new state.And Carl Schmit was a defender of homogeneity in a state because for him homogeneity is a trust for the constitutional stability. Doç. Dr. Ece Göztepe , Bir klasik eser olarak Carl Schmitt’in ‘’AnayasaÖğretisi’’ pp. 25 With the improve of homogeneity,and the recognition of other sovereign states (France,Italy , Japan,Greece,British Empire..) Ankara government or Grand National Assembly was become the sovereign power in the Anatolia. And the 1921 constitution even with amendments is not sufficient for the new state.Therefore they decided to make a new constitution in order to finish the binary constitutional system ( because the 1876 constitution was still used for some articles) and provide the needs of the new state. The new constitution started with the same Article which amended in 1923. Article 1 of 1924 : The Turkish State is a Republic. There was a article which proclaimed State’s religion is Islam, stayed in constitution until 1928.But it is an important article for our paper. Article 2 of 1924 This article has two amendments one in 1928 and other in 1937 : The religion of the Turkish State is Islam ; the official language is Turkish ; the seat of government is Angora. Because Kelsen was against political statements in the constitution, He wanted to seperate the moral, political norms and legal norms Ali Sağlam, Bir hukuk teorisyeni olarak Hans Kelsen ve onun düşünceleri üzerine bir çerçeve çalışması..Therefore we can ask if the statement of ‘’ State’s religion is Islam’’ is a political statement or not? It is open to debate because the source of this norm can be the ‘’grundnorm’’ and it is also a part of Kelsen’s Theory. However the statement was removed in with an constitutional change voted in Grand National Assembly. Later in 1937 more political statements added to the constitution. Article 2 of 1924: Turkey Republic is republican,nationalist,populist,statist,secular and revolutionist state. The official language is Turkish ; the seat of government is Angora. There is another article in 1924 constitution which can interpretable with Hans Kelsen’s Theory . Article 103 of 1924: None of the provisions of this Constitution may be arbitrarily modified on any pretext; neither may the enforcement of any provision be suspended. No law shall be in contradiction to the Constitution. And another article is proclaimed the liquidation of The Constitutional Law of 1876. As it was ipso facto invalid since there were articles in contradiction with The Constitutional Law of 1924. Also in Pure theory of Law , Kelsen was against binary laws. Article 104 of 1924: The Constitutional Law of 1876 together with its amendments and The Organic Law of January 30,1921 and the amendments thereto are hereby anulled. On the other hand for Schmitt, amendments to the constitution only valid if it has the consent of the ‘’constituent power’’. And in democracies the constituent power is people. In an article it gives the approval of the constitutional changes to the parliementary as the representative of the people and blocked the veto right of the President of the Republic to the amendments of the constitution. Article 35 of 1924: The President of the Republic shall promulgate in ten days of its enactment any law voted by the Assembly. The President of the Republic must return within ten days any law which he does not consider worthy of promulgation, together with a statement of his reasons, for consideration by the Assembly; amendments to the constitution and legislation concerning the Budget are not subject to the President’s suspensive veto. The 1961 Constitution There was not any organ to check and limit the National Assembly’s legislative and executive power, and not any organ to decide if the legislation is in contradiction with constitutio or not. And this is the most important achille’s heel of the 1924 constituion.And it leads to authocratic rule even in the multi-party system.Therefore there was a millitary coup d’etat in 27 May 1960. And the constituent assembly prepeared a new constituion with seperation of powers and checks and balances. The 1961 constitution was a liberal and democratic in order to 1924 constitution. Under the new constitution the citizens enjoyed a remarkable degree of freedom. A wider spectrum of political activity was tolerated. The new constitution had a social, democratic and secular character Article 2 of the new constitution stated that “the Turkish Republic is a national, secular and social State under the rule of law, based on human rights and the fundamental principles set forth in the Preamble” (İsmet Giritli, “Fifty Years of Turkish Political Development 1919-1969”, İstanbul: Fakülteler Matbaası, 1969, pg 168).. The constitution contained guarantees of freedom of thought, expression, association and publication as well as other democratic freedoms. Citizens enjoyed more civil rights. And another important thing was it asked to the people in a referenda and accepted with the %61 of the valid votes. The most important thing which came with 1961 constitution is its institutions. The establishment of ‘’Constitutional Court’’ is a gift of 1961 constitution. For Kelsen the duty of legal expert is to examine if the enacted law is legitimate due to its validity and applicability. And the duty of new institution was examining the validity of legislation and check its validity in the ‘’hieararchy of the norms’’. Doç. Dr. İbrahim Ö. Kabaoğlu - Kelsen modeli ‘’Sınırları’’nda demokratikleşme sürecince anayasa yargıçları This institution is also the protector of the ‘’Hieararchy of the Norms’’ Article 147 of 1961 : The Constitutional Court shall review the constitutionality of the laws and the By-laws of the Turkish Grand National Assembly. In brief 1961 constitution can proclaim as a Kelsenian constitution with the streghten of law against politics , in practice it is giving more space and more power to the judicial power and weaken the legislative and executive power. But Carl Schmitt was against the strong judicial power.For him the exceed of judicial branches its own power limits cause to meddle to the legislation and the born of judiciary state. With the 1961 constitution, turkish political sphere became more colourfull, with the rights and freedoms , the young students in universty start to be part of the political issues. But most of them radicalized and become enemy to each other it cause to a chaotic atmosphere and lead to fights in squares and in campuses. And the state start to see some political fractions as an enemy to itself , to the constitution. This era and the 1982 constituion can be understand with the terms of Carl Schmitt, and the influence of the Carl Schmit is very high during the new constitutions creation. The 1982 Constitution With the military coup d’état on 12 September 1980, they decided to make somechanges in the constitution.(Like 1961 Constitution) .Unlike 1961 Constitution, it strengthened the executive system within the state structure. It was prepared by constituent assembly.And the new constitution accepted by referandum in 27 November 1982 with a %91.16 percent of the votes. Both 1961 constitution and 1982 constitution was a resultof millitary coup d’etat. But they very diffrent in many ways. As 1961 constitution is more democratic and has freedoms and rights in its articles, 1982 constitution has limitations of the rights and have a totaliterian spirit. The aim of 1982 constitution was to defend the state against radical ideologies. As Carl Scmitt witnessed in Weimar Republic, the pluralism lead to a unstable constitution. And the terms ally-enemy for the state is terms of Carl Schmitt. And with 1982 constitution , there is a blockage to the fractions which are in contradiction to the ideology of the Constitution. Dr. Mehmet Tevfik Gürsoy Anayasa mahkemesi kararlarında ölçü-norm ve siyasal alanın sınırı olarak başlangıç ilkeleri Article 56 of 1961 : Political parties can be founded without prior permission and shall operate freely. Article 68 of 1982: Political parties shall be founded without prior permission and shall pursue their activities in accordance with the provisions set forth in the Constitution and law. For Schmitt its a type of Political Constitution which blocks the enemy ideologies to defend itself and he claimed that Weimar Republics constitution is weak because of not being a ‘’political constitution’’. Moreover , 1982 constitution includes the emergence rule , state of excecption, terms to authorize the government to suspend basic rights and political rights. ‘’Among the various mechanisms by which the military has exercised a constitutionally mandated control of civilian life, none is more indicative of the authoritarian spirit of the 1982 Constitution than its expansive provisions concerning emergency rule. In an arresting approximation of Carl Schmitt’s terminology, the Turkish expression for constitutionally mandated emergency rule, “Olağanüstü Hal,” translates as the “state of exception.” Once declared, the state of exception authorizes the government to suspend basic rights and due process guarantees, and to legislate by decree. ‘’ Turkuler Işıksel , Between text and context: Turkey’s tradition of authoritarian constitutionalism And the 1982 Constitution seperate the emergency rule into two type the first is a ‘’state of exception’’ in the cases of natural disasters, economic crisis or epidemical civil unrest, it clarified in the Articles 119-121 and the second case is martial rule about riots and wars which claryfied in the Article 122. Article 122 of 1982: The Council of Ministers, under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare martial law in one or 60 more regions or throughout the country for a period not exceeding six months in the event of widespread acts of violence which are aimed at the destruction of the free democratic order or the fundamental rights and freedoms embodied in the Constitution … Conclusion: As we define what is constitution and we analyzed the devolopments in the Turkish Constitution .There was a progress in the turkish politcal system as it become to a republic with the establishment of Grand National Assembly and the abolishment of sultanate,later the progress contiunue with the transition to multi party system in 1950. And there were two coup d’etat s which changed the constitution and another coup d’etat which amendt the constitution. The turkish constitutional devolopment was full with changes , amendments , and liqiuditions. But when we look at the Kelsen’s theory and his approaches to the constitutional changes he is against these things and he was a defender of stability in the constitution. He was not only a theorist but also a practician. He was in the team which writed the Austurian constitution and when we look at the constitutional changes in Austurian constitution we can see what stability is. In my opinion Kelsen’s theory for constitution is more suitable for Turkey, since Turkey is a new democracy and dont have a fully estabished democracy there should be a strong ‘’rule of law principle ‘’ in the constitution. It writes in the todays constitution but it should be in the content of the articles not only in one. The speeches of Interior Minister of Turkey Republic is not a normal thing, he said that he ‘’dont recognize the constitution’’. There should be a constitution which is immune , no politician can critise the constitution because the constitution is giving them the right to be a minister or president.And the legislations should not be in contradiction with the constitution. Bibliography: Nuran Koltuk, Batı Anadolu’da Kuva-yı Milliye’nin askeri ve mali kaynakları The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, Constitutional Development Of Turkey Since Republic , Prof. Dr. İlhan ARSEL 1961 Tülin Çağdaş, 1921-1924-1961-1982 Anayasalarının özellikleri (İstanbul: Beta 2009) s.2 Şükrü Hanioğlu Atatürk and intellectual Biography Carl Schmitt , Constitutional Theory ,J. Seitzer trans. (Durham NC: Duke University Press, 2008) - Chapter 7 The Constitution as Contract Hukuk Felsefesi ve Anayasa Yargısı Prof. Dr. Niyazi ÖKTEM (Anayasa Yargısı Dergisi pp 269) Carl Schmitt, Constitutional Theory J. Seitzer trans. (Durham NC: Duke University Press, 2008), pp 125 Martin Loughlin, The concept of Constituent power - Critical Analysis of Law Workshop, University of Toronto Unauthorized translation of 1921 Constitution of OFG, November 2003. http://www.anayasa.gen.tr/1876constitution.htm https://en.wikipedia.org/wiki/Turkish_Constitution_of_1921 Karl Schmitt, Verfassunglehre Edward Mead Earle, The new constitution of Turkey (The translated form of 1982 constitution) pp 29 Doç. Dr. Ece Göztepe , Bir klasik eser olarak Carl Schmitt’in ‘’AnayasaÖğretisi’’ pp. 25 Ali Sağlam, Bir hukuk teorisyeni olarak Hans Kelsen ve onun düşünceleri üzerine bir çerçeve çalışması. Doç. Dr. İbrahim Ö. Kabaoğlu - Kelsen modeli ‘’Sınırları’’nda demokratikleşme sürecince anayasa yargıçları Dr. Mehmet Tevfik Gürsoy Anayasa mahkemesi kararlarında ölçü-norm ve siyasal alanın sınırı olarak başlangıç ilkeleri Turkuler Işıksel , Between text and context: Turkey’s tradition of authoritarian constitutionalism Kemal Gözler, Anayasa Normlarının Geçerliliği Sorunu , Bölüm 8 Anayasanın ruhu sorunu, Bursa, Ekin Kitabevi Yayınları,1999, VIII+320 s.(www.anayasa.gen.tr/angecerliligi.htm)