Democratization and the Politics of Constitution-Making in Turkey

1. The History of Constitution-Making in Turkey

CHAPTER 1 The History of Constitution-Making in Turkey The First Steps Toward Constitutional Government As indicated above, the beginnings of constitutionalism in the Ottoman Empire can be traced back to the nineteenth century.1 The first constitutional document of dubious legal value was the Deed of Alliance (Sened-i İttifak) signed in 1808 between the representatives of local notables (âyan) and those of the central government. In the document the notables affirmed their loyalty to the central government in exchange for recognition of their traditional privileges. The document also stipulated that the Chief Minister would be responsible for the state affairs. Although the interpretations comparing the Deed of Alliance with the Magna Carta are highly exaggerated, it can still be considered as the first step towards the notions of limited government and the rule of law. However, the Deed remained unimplemented , and was quickly superseded by the authoritarian modernization of Sultan Mahmud II. The second step towards constitutional government was the two edicts of the Reform period (notably, the Edict of Tanzimat of 1839, and that of Islahat of 1856). Legally, these documents were no more than a unilateral declaration and recognition by the Sultan of certain basic human rights for his subjects, including security of life, honor and property, the abolition of tax farming (iltizam), fair and public trial of persons accused of crimes, and the equality of all Ottoman subjects irrespective of religion. No effective legal mechanism was established to ensure the enforcement of such provisions, which remained only morally binding upon the Sultan. Yet, one should not minimize the significance of the Reform rescripts in the constitutional development of the Ottoman Empire. They signified the first important break with the autocratic and absolutist political traditions of the Empire, and they paved the way for a still more important step, the promulgation of the first Ottoman Constitution in 1876. Turkey to?rdelt 01 :Whats minta 1 2/24/09 3:59 PM Page 7 The Constitution of 1876 The Ottoman Constitution of 1876, promulgated by Sultan Abdülhamit II, acting under the pressure of a small group of reformist bureaucrats , was prepared not by a representative constituent assembly, but by a special committee appointed by the Sultan. The committee was composed of a total of 28 members, including two members of the military establishment, 16 civilian bureaucrats (of whom three were Christians), and 10 religious scholars (ulema).2 In the committee, the reformers headed by the Prime Minister Mithat Paşa were in a minority. Therefore, the final text reflected a compromise between the reformers and the conservatives supported by the Sultan. The Constitution of 1876 provided, for the first time, some constitutional mechanisms to check the absolute powers of the Sultan. The most important novelty of the Constitution was the creation of a legislative assembly at least partially elected by the people. The Ottoman legislature, called the “General Assembly” (Meclis-i Umumi ) was composed of two chambers: the Senate (Heyet-i Ayan) and the Chamber of Deputies (Heyet-i Mebusan). The members of the Senate were to be appointed for life by the Sultan, while the deputies were to be elected by the people through indirect (two-stage) elections in which only property owners were allowed to vote. The General Assembly was granted certain powers to enact laws and to exercise control over the executive. On both accounts, however, the ultimate authority still rested with the Sultan, who thus remained the cornerstone of the constitutional system. On the other hand, the Sultan could not unilaterally enact laws or amend the Constitution. Thus, some degree of balance was established between the two political organs. In addition, the Constitution had recognized the independence of the judiciary and enumerated certain basic rights and freedoms. The Constitution of 1876 fell far short of establishing a parliamentary monarchy, in which the substance of political power rested with parliament, and the monarch’s role is restricted essentially to ceremonial and symbolic matters. Nevertheless, even this limited experience in constitutional government proved too much for Abdülhamid II, who prorogued the Chamber of Deputies indefinitely in 1878 and returned to absolutist rule for thirty years. The influence of Western liberalism, however, continued and expanded under his 8 Democratization and the Politics of Constitution-Making in Turkey Turkey to?rdelt 01 :Whats minta 1 2/24/09 3:59 PM Page 8 authoritarian rule. Increasing numbers of students, intellectuals, bureaucrats and army...