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Turkey

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The current Constitution of Turkey, ratified on November 7th 1982, establishes the organization of the government of the Republic of Turkey and sets out the principles and rules of the state's conduct along with its responsibilities towards its citizens. The Constitution also establishes the rights and responsibilities of the latter while setting the guidelines for the delegation and exercise of sovereignty that belongs to the Turkish Nation.


The President of the Republic is elected by the parliament and has a largely ceremonial role as the Head of State, "representing the Republic of Turkey and the unity of the Turkish Nation" (A104).

Contents

Judiciary

Article Nine affirms that the "judicial power shall be exercised by independent courts on behalf of the Turkish Nation". Part Four provides the rules relating to its functioning and guarantees full independence (A137-140). The judiciary obeys the modern separation of powers among its ranks: It is divided into two entities, Administrative Justice and Judicial Justice, with the Danıştay (The Council of State) the highest court for the former (A155) and Yargıtay (High Court of Appeals) the highest court for the latter (154).

Part Four, Section Two allows for a Constitutional Court that statutes on the conformity of law and governmental decrees to the Constitution, and it can be seized by the President of the Republic, the government, the members of Parliament (A150) or any judge before whom an exception of unconstitutionality has been raised by a defendant or a plaintiff (A152). The Constitutional Court has the right to both a priori and a posteriori review, and it can invalidate whole laws or decrees and ban their application for all future cases (A153).

Executive

Per Article Eight, the executive power is vested in the President of the Republic and the Council of Ministers. Part Three, Chapter One, Section Two (Articles 109-116) lays out the rules for the confirmation and functioning of the government as the executive comprising the Prime Minister and the Council of Ministers (A109).

Part Three, Chapter Two, Section Four organizes the functioning of the central administration and certain important institutions of the Republic such as its universities (A130-132), local administrations (A127), fundamental public services (A128) and national security (A117-118). Article 123 stipulates that "the organisation and functions of the administration are based on the principles of centralization and local administration".

National security

The Turkish Armed Forces (TAF) are subordinate to the President, in the capacity of Commander-in-Chief. The Chief of General Staff of the TAF is responsible to the Prime Minister in the exercise of his functions, and the latter is responsible, along with the rest of the Council of Ministers, before the parliament (A117).

National Security Council is an advisory organization, comprising the Chief of General Staff and the four main Commanders of the TAF and select members of the Council of Ministers, to develop the "national security policy of the state" (A118).

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Revision

In Article 175, it also sets out the procedure of its own revision and amendment by either referendum or a qualified majority vote of 2/3 in the National Assembly. It does not recognize the right to popular initiatives: Only the members of Parliament can propose modifications to the Constitution.

Critique

Ethnic rights

The Constitution of 1982 has been criticized as limiting individual cultural and political liberties in comparison with the previous constitution of 1961. Critics claim that the constitution denies the fundamental rights of the Kurdish population. Per the Treaty of Lausanne which established the Turkish Republic, legally, the only minorities are Greeks, Armenians and Jews, which also have certain privileges not recognized to other ethnic communities, per the treaty. Article Three, implicitly, and Article Ten, explicitly, ban (in the spirit of Turkishness based on citizenship rather than ethnicity mentioned above) the division of the Turkish Nation into sub-entities and the referral to ethnic groups in law as being separate from the rest of the Turkish Nation because of the principle of indivisibility of the nation. This principle of indivisibility is contained in the Article One of the Constitution of France (ratified in 1958), as well.

Article Three states that the official language of the Republic of Turkey is Turkish. The Council of Europe’s European Commission against Racism and Intolerance (ECRI) published its third report on Turkey in February 2005. The commission has taken the position that the parliament should revise Article 42 of the Constitution, which prohibits the teaching of any language other than Turkish as a first language in schools. [1] The Turkish constitutional principle of not allowing the teaching of other languages as first languages in schools to its citizens, other than the official one, is similar to the policies of Germany, France and Austria, all members of the European Union.[citation needed] Since 2003, private courses teaching minority languages can be offered, but the curriculum, appointment of teachers, and criteria for enrollment are subject to significant restrictions. All private Kurdish courses were closed down in 2005 because of bureaucratic barriers and the reluctance of Kurds to have to "pay to learn their mother tongue."[2]

Freedom of expression

The constitution grants freedom of expression, as declared in Article 26. Article 301 of the Turkish penal code states that "A person who publicly denigrates the Turkish Nation, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years" and also that "Expressions of thought intended to criticize shall not constitute a crime".

Orhan Pamuk's remark "One million Armenians and 30,000 Kurds were killed in these lands, and nobody but me dares talk about it." was considered by some to be a violation of Article 10 of the Constitution and led to his trial in 2005. The complaint against Orhan Pamuk was made by a group of lawyers led by Kemal Kerinçsiz and charges filed by a district prosecutor under the Article 301 of the Turkish Penal Code. Pamuk was later released and charges annulled by the justice ministry on a technicality. The same group of lawyers have also filed complaints against other lesser-known authors on the same grounds. Kerinçsiz was indicted in the 2008 Ergenekon investigation, along with many others.

Influence of the military

The constitution is also criticised for giving the Turkish Armed Forces, who see themselves as the guardians of the secular and unitary nature of the Republic along with Atatürk's reforms, too much influence in political affairs via the National Security Council.[citation needed]

Footnotes

  1. ^ http://europa.eu.int/comm/enlargement/report_2005/pdf/package/sec_1426_final_en_progress_report_tr.pdf
  2. ^ http://www.minorityrights.org/download.php?id=425

References

External links


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