POLITICAL RIGHTS AND DUTIES IN 1982 CONSTITUTION
POLITICAL RIGHTS AND DUTIES IN 1982 CONSTITUTION
At 12 September 1982, the military took over the control of the country. As a result of this coup, National Security Council and Consultative Assembly were established. These two institutions prepared a new constitution which was approved by 91% of the voters in ’82 referendum. Increasing political polarization, violence, and terrorism towards the end of the 70s was put forward as pretexts for the coup. For this reason, the constructors of ’82 constitution thought that excessive permissiveness of the ’61 Constitution was the origin of the political crisis of the 70s which was the erosion of the state authority and, more specifically, to the weakness of executive branch. Because of this, it was attached more importance on “strong state and strong executive” rather than fundamental rights and freedoms in ’82 Constitution. (Özbudun, 2007) In ’82 constitution, there had been taken measures in order to abolish the barriers in front of the political mechanism. One of the reasons for the coup was the inability of TGNA to elect a president. Besides, activities of political parties, labour unions, associations that enable participation to the politics were limited. By this understanding, it was desired to keep society away from politics as far as possible. (Atar, 2005)
The 1982 Constitution has so far been amended several times. These amendments are important because of being positive steps towards democracy process. Especially, restrictive status of political rights and freedoms in the constitution was desired to be amended. For example, in 1987 the voting age lowered from 21 to 20 and finally in 1995 by the amendment of article 67/2 it was lowered to 18. “All Turkish citizens over 18 years of age shall have the right to vote in elections and to take part in referenda.” (Transitional Art. 67/2) By this amendment, the policy of keeping youth away from politics was abandoned partially and it enabled to enhance the participation to the politics.
In constitution, it is determined that who could have the right to vote and stand for elections. Amendments made in ‘95 and ‘01 gave the right to vote to Turkish citizens living abroad and convicts of negligent offences. Constitutional article 67/4 puts the limitations to vote by stating “Privates and corporals serving in the armed services, students in military schools, and convicts in penal execution excluding those convicted of negligent offences cannot vote.”
In order to impede the amendments that might serve the interests of government party, it was stated in Art. 67/7 as “amendments made to the electoral laws shall not be applied to the elections to be held within one year from when the amendments go into force.”
Political parties were subjected to excessive restrictions until ’95. Amendments made in ’95 and ’01 enabled political parties to perform in a freer environment. In spite of all these amendments, there were still lots of prohibitions which were irrelevant to the democracy understanding to the activities of political parties. (Atar, 2005)
Forming parties, memberships in a party and principles to be observed by political parties are stated in constitution article of 68 and 69. As amended in ’95, transitional article 68/1 gave citizens the right to form political party, join and withdrawal from them. And put the limitation of 18 years of age to become a member of a party. According to transitional article of 68/3, political parties can be formed without prior permission. This concept provided political parties opportunity to be fully independent from the consent of the standing political authority, government. In the transitional articles of 5, 6, 7 of article 68, it is determined that whether one shall become a member of political parties or not. In the last sentence of the article 68, it is stated that the state shall provide the political parties with adequate financial means in an equitable manner. With this article, democracy and participation of political activity were aimed to reach an extensive ground in society.
Certainly, the attainment of absolute freedom of political parties in process of democracy is not considerable. For this reason, ’82 Constitution proposed a certain number of prohibitions related to parties’ activities, aims and principles of functioning. These prohibitions aimed to preserve the principles such as independence, integrity, rule of law, democratic and secular republic, rather than limiting the political participation. In transitional article 68/4 “the statutes and programmes, as well as the activities of political parties shall not be in conflict with the independence of the state, its indivisible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime” was said to stand for the prohibitions related to parties’ aims and activities. This notion forms the main principle to be observed by political parties.
By the article 69/1, relevancy with democracy was stipulated to the activities of the political parties. There had been put some other limitations and regularities as saying “political parties shall not engage in commercial activities” (Transitional Art.69/3) and “the income and expenditure of political parties shall be consistent with their objectives” (Transitional Art.69/4).
As mentioned above, there are certain limitations to the activities and functions of political parties that proposed in constitution. Constitution also determines the sanctions that parties would come across when they violate those limits. These sanctions can be as complete dissolution and deprival of state aid. In constitution, these penalties would be put into practice if the two laws had been violated. First, in transitional article of 69/5, it is determined that in which conditions parties would be completely dissolved by referring to the transitional article of 68/4 which was mentioned before. The original text of ’82 Constitution stipulated that parties which have become “focus” anticonstitutional activities shall be prohibited by the Constitutional Court, but left the concept of focus vague. Hence, this condition gave Constitutional Court excessive responsibility which is contrary to democracy understanding. However, amendment in article 69 made the dissolution of political parties more difficult. Concept of focus was clearly defined in the constitution after the amendment in ’01 (Ergun Ozbudun). Another amendment to the same article take part in constitution as “instead of dissolving them permanently in accordance with the above-mentioned paragraphs, the Constitutional Court may rule the concerned party to be deprived of State aid wholly or in part with respect to intensity of the actions brought before the court” (Transitional Art. 69/8) that represents an alternative to the dissolution of a political party. Secondly, the edict of “political parties which accept financial assistance from foreign states, international institutions and persons and corporate bodies shall be dissolved permanently” (Transitional Art. 69/10) is the other reason for the dissolution of a political party.
Article 70 of the constitution proposed that every Turk has the right to enter public service without differentiation other than qualifications for the office. In the articles of 72 and 73, it is stated that every Turk have the rights and duties such as national service and obligation to pay tax. The last edict of political rights and obligations in the constitution is the right of petition. (Art.74)
In conclusion, in this article it was aimed to be interpreted the political rights and obligations in the Turkish Constitution with comprising the process of amendments in the sense of democracy. It was necessary to understand the background of the ’82 Constitution and the reasons for amendments in order to analyze the political rights and obligations.
In recent debates, some asserts that ’82 Constitution was a product of military understanding thus limiting the fundamental rights and freedoms to a large extent, and it should be amended by a totally new constitution. On the other hand, some affirms that the amendments made up to now were satisfiable to contemporize the constitution thereby needless to form a new constitution. In the lights of all these details given above, the time is the greatest indicator.
Atar, Yavuz (2005). Türk Anayasa Hukuku. Konya: Mimoza Yayınları.
Gözübüyük, A. Şeref (2007). T.C. 1982 Anayasası. Ankara: Turhankitabevi Yayınları.
Özbudun, Ergun (2007). Introduction to Tukish Law. Ankara: Turhankitabevi Yayınları .